by Amy Steigerwalt. Charlottesville, VA: University of Virginia Press, 2010. 304pp. Cloth $45.00. ISBN: 9780813929941.
Reviewed by Richard L. Vining, Jr., Department of Political Science, University of Georgia. E-mail: rvining [at] uga.edu.
Since the Reagan administration transformed the selection criteria for lower federal judges, emphasizing policy over patronage, nominations to lower courts have become more contentious. This observation has inspired a wave of scholarship examining how potential jurists are selected by the president and treated by senators. Goldman (1997) provided a seminal study of lower court selection since the 1930s. Later contributions by Bell (2002) and Scherer (2005) updated this literature to highlight the growing role of political activists in the lower court appointment process. Amy Steigerwalt’s BATTLE OVER THE BENCH is a significant contribution to this body of research. Steigerwalt analyzes opposition to circuit court nominees from 1985 to 2006 by examining newspaper archives, interviewing Senate staffers and political activists, and performing quantitative analysis. Her findings highlight the extent to which judicial nominees are part of normal politics. She also demonstrates that the conventional wisdom overestimates the role of ideology in obstruction of the confirmation process.
The central theoretical contribution of BATTLE OVER THE BENCH is a “four tracks framework.” Steigerwalt characterizes judicial nominations as analogous to trains traveling on a track until reaching a switch point. Once there, they can either proceed on their current routes or change tracks. These pathways are labeled the noncontroversial track, senatorial courtesy track, private political track (i.e., nominees are obstructed by parliamentary procedures), and public partisan track. Steigerwalt explains that the routes traveled by nominees are fluid; they enter and exit a track as dictated by their treatment in the political environment. This framework is relatively simple but describes the realities of the confirmation process rather well. Much of the book is devoted to why nominations enter or leave a track using both qualitative and quantitative evidence.
In the opening chapters Steigerwalt explores the four tracks framework in great detail. How and when nominees reach one track or shift to another are consequential because the four tracks are associated with particular outcomes. Seventy-seven percent of nominees in Steigerwalt’s data stayed on the noncontroversial track and were not opposed. These individuals were confirmed quickly. The remaining nominees traveled one or more of the other tracks. Those on the senatorial courtesy track (7.4 percent) recovered less than half the time from opposition by their home-state senators. Conversely, nominees on the private political track were usually held captive [*346] temporarily by unrelated disputes and were eventually confirmed. About twenty percent of nominees reached the public partisan track resulting in long delays and overt opposition by senators and activists. Even among this group, Senate approval was more common than not. Sixty-one percent of nominees with active opponents were confirmed. Delay is far more common that defeat, but both depend on the track on which the nominee is situated. It is clear that not all obstruction of judicial nominees is created equal. In addition, nominees forced to one track may be able to course-correct if allowed by the contemporaneous political environment.
The second major contribution of the book is its analysis of the parliamentary tools used to obstruct nominations. Popular commentary on delay in the confirmation process focuses on abuse of the filibuster. However, Steigerwalt shows that nominees are much more likely to be delayed by other means – primarily blue slips and holds. She provides clear and succinct explanations of these obscure procedures as well as additional tactics available to senators. Whatever tool is used, obstruction is more likely to result from retaliation, institutional conflict about the nomination process, or temporary political disputes than because of ideological objections to a nominee. In fact, senators even obstruct nominees whom they support in order to achieve unrelated goals. This is a significant finding and should motivate a thoughtful reconsideration of obstruction in the confirmation process. It occurs, and somewhat frequently, but the reasons for delay usually have little to do with the nominee per se.
Another unique aspect of BATTLE OVER THE BENCH is its use of interview responses to understand the relationship between Senate staff and judicial watchdog groups. In Chapters 4 and 5, Steigerwalt reports the results of interviews with staff, one former senator, and activists in 2002 (several years before both the “gang of 14” compromise to end most filibustering, and the end of the data). Staffers explained the frequency and value of their contacts with interest groups, and political activists reported how they choose which nominees to oppose actively. The informal role of interest groups is shown to be valuable to senators, though Democrats and Republicans use watchdog groups differently (to pick targets or to lead public relations, respectively). The responses provided by activists are revelatory. They explain an array of considerations used to sift through nominees. Merely being a liberal or conservative nominee is not sufficient. Interest groups consider the characteristics of the nominee, the nomination, their own organization, the Senate, and the political environment. In the end, groups must satisfy their supporters and remain true to their mission. This is consistent regardless of groups’ ideological orientations or advocacy goals.
Chapter 6 includes a series of quantitative models to test whether interest group opposition significantly increases the number of committee votes against a nominee. Steigerwalt focuses on votes in the Judiciary Committee rather than the full Senate. The choice to focus on votes in committee is unusual for this literature but appropriate given the nearly universal success of [*347] nominees who pass that veto point successfully. She concludes that interest group objection has a substantial impact on votes in committee even when controlling for several personal and political factors.
Despite its many contributions BATTLE OVER THE BENCH is, like all studies, limited in some ways. Steigerwalt focuses on nominations to the U.S. Courts of Appeals, leaving the reader to wonder whether the four tracks framework is applicable to nominees to other positions. The interview responses suggest that it does, but the question remains to be addressed systematically. It is also possible that the responses provided by staffers and activists are time-bound, tinged by the political environment when the interviews were conducted. This moment followed President Clinton’s troubles with the confirmation process but preceded the struggle over Republican circuit court nominees during the middle Bush II years. Senate staffers and activists might have adjusted their activities since that date. These points can be addressed in future research.
Students of federal judicial nominations, parliamentary procedure, and interest groups should read BATTLE OVER THE BENCH. It provides a useful theoretical framework for the treatment of judicial nominees and explains the participation and impact of pressure groups in lower court selection. Steigerwalt’s results indicate that the lower court selection process functions well unless institutional norms are ignored or senators use nominations as bargaining chips in unrelated disputes. However, such practices are relatively common. Interest groups pick and choose nominees to challenge, and have to make a compelling case to stir opposition among senators. That said, members of the Senate rely on interest groups to identify objectionable nominees and respond to their warnings. These are valuable findings and provide a better understanding of the lower court selection process. I hope that scholars recognize their importance and follow Steigerwalt by continuing to improve our knowledge of judicial selection.
Bell, Lauren Cohen. 2002. WARRING FACTIONS: INTEREST GROUPS, MONEY, AND THE NEW POLITICS OF SENATE CONFIRMATION. Columbus, Ohio: The Ohio State University Press.
Goldman, Sheldon. 1997. PICKING FEDERAL JUDGES: LOWER COURT SELECTION FROM ROOSEVELT THROUGH REAGAN. New Haven, Connecticut: Yale University Press.
Scherer, Nancy. 2005. SCORING POINTS: POLITICIANS, ACTIVISTS, AND THE LOWER FEDERAL COURT APPOINTMENT PROCESS. Stanford, California: Stanford University Press.
© Copyright 2011 by the author, Richard L. Vining, Jr.