Obstructing Justice: The Confirmation of Federal Judges

My fellow fellows,

My name is Alex Beer and I am a junior, American Studies major at Northwestern University. I am extremely excited to meet all of you and learn more about your topics over the course of the year — I’ve read your blog posts and all of your topics are fascinating. For my research project I have decided to take a closer look at the appointment process for federal judges, a Constitutionally mandated collaboration between the Executive and Legislative branches. 

As the scope of the federal government has expanded, the judiciary has played an increasingly visible role in shaping the lives of everyday Americans. From gun control to health care,  federal judges have provided the final verdict on some of the most significant (and controversial) pieces of public policy in recent history. With many of these decisions, though, the judiciary has been accused of making laws instead of interpreting them. 

Changes in the selection process appear to reflect the anxiety that judges, in some way, compete with legislators. Over the last several administrations, the Senate minority party has adopted the practice of using procedural rules, particularly the filibuster, to drastically delay a nominee’s confirmation. For instance, the average confirmation time jumped from eighty-seven days between 1977 and 1992 to 707 days under George W. Bush.[i] This increase in confirmation time is closely related to the increase in judicial vacancies. During President Obama’s first four years in office, vacancies rose by 51%, in contrast to President Clinton and President Bush’s first term, when vacancies declined by 65% and 34%, respectively.[ii] 

Not all federal courts are created equal; opportunities for judges to legislate from the bench, known as judicial activism, vary by court. Thus, appellate judges sitting on “higher” courts are more likely than “lower” district court judges to hear cases that have political ramifications. For example, the U.S. Court of Appeals for the D.C. Circuit, arguably the nation’s second highest court, is responsible for directly reviewing the actions of independent federal agencies (e.g., the CIA, FCC). Given the Court’s jurisdiction in matters ranging from national security to environmental protection, it is not necessarily surprising that all but one of President Obama’s nominees have failed to fill one of the conservative-leaning Court’s four vacancies. During President Obama’s first term, Senate Republicans twice filibustered the motion to vote on one of his nominees to the D.C. Circuit, Caitlin Halligan. After three years of waiting, Halligan requested that her name be withdrawn. Halligan’s experience is far from isolated or germane to a Republican minority. Indeed, Senate Democrats similarly used the filibuster to delay the confirmation of George W. Bush’s nominees. 

Through my research I hope to better understand how and why the selection and confirmation of federal judges has become the political battle that it is today. First, I will use statistical analysis to determine if there is a significant difference in the delay time for nominees to higher and lower courts. Since lower court judges have fewer opportunities to decide hot-button cases, I hypothesize that their road to confirmation has been smoother and shorter. I will also compare how Republicans and Democrats have changed the confirmation process. As judges serve for life, how a President shapes the federal judiciary can be among the most enduring parts of his administration’s legacy. And, as my preliminary research has already shown, the Senate minority party can also set a lasting precedent for obstructionism, depending on how it treats the confirmation process. 

If anyone has ideas for additional questions I should address or how I can further focus my research, please let me know! My email is alexbeer@u.northwestern.edu

All best,


[i] [i] Lott, John R. Dumbing Down the Courts. Minneapolis: Bascom Hill Group, 2013. 92. Print.

[ii] State of the Judiciary. Rep. Alliance for Justice, 19 Nov. 2012. Web. 1 Aug. 2013.


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