Senate Confirmations in an Interest
Group Age
Randolph-Macon College
A 2003 fundraising flyer from the liberal interest group People For the American Way asks: "What's at stake if Bush listens to the Radical Right and appoints a Scalia-Thomas clone to the U.S. Supreme Court?" The flyer then provides this answer: "Everything we've fought for over the last 40 years" and asks respondents to make a donation to the organization.1 A 1998 fundraising memorandum from the conservative Judicial Selection Monitoring Project promises contributors of $10,000 or more "invitations to attend periodic private briefings and intimate dinners in Washington with Paul Weyrich, JSMP Director Tom Jipping and leading conservative elected and public figures closely involved with the judicial confirmation process."2
Interest groups, which once had little interest in the confirmation process, today are integrally involved in shaping its dynamics. Frustrated by decades of partisan gridlock in Congress and cognizant of the significant policy implications of who sits on the president's cabinet and the federal bench, groups from every position of the political spectrum actively monitor the confirmation process; many of them seek direct influence over its outcomes. In addition to raising funds to support their own activities, more than $100 million dollars was given to senators in 1997 and 1998 by interest groups and political action committees (PACs) that participated in the Senate confirmation process during the 105th Congress.3 Although many observers believe that this interest in the process stems from the success of liberal interest groups in forcing the rejection of conservative Robert Bork's nomination to the U.S. Supreme Court in 1987, in fact the seeds of interest group involvement in the confirmation process were sown long before Bork was nominated. Moreover, the effects of the groups' participation in his failed confirmation attempt have had ramifications far more complex than simply increasing interest groups' participation in Senate confirmations.
The Bork Nomination
Bork's nomination in 1987 was part of an effort to increase the number of conservative judges on the federal courts by then-President Ronald Reagan. When Chief Justice of the United States Warren Burger retired from the Supreme Court in 1986, Reagan filled the vacancy with sitting associate justice William Rehnquist, then nominated the conservative Antonin Scalia to replace Rehnquist in the associate position. A year later, Reagan hoped to add another well-credentialed conservative to the Court when he nominated Bork to replace the retiring Lewis Powell. Following a massive campaign against the nominee, the Senate defeated Bork's nomination 48-52.
The Bork nomination was the most publicly contentious Supreme Court nomination since the 1960s. As political scientist Bruce Wolpe noted: "According to the Senate Postmaster, the Bork controversy drew more mail than any issue in recent memory."4 Among all those pieces of mail were literally thousands of items from both conservative and liberal interest groups urging senators to vote their way on the nomination. Robert Hrebenar summarizes the extent of the groups' engagement in the Bork confirmation decision: "By the time the Bork nomination was decided, groups from every part of the political spectrum had spent millions of dollars and immeasurable effort..."5 In the aftermath of the Bork nomination, political scientist Gregory Caldeira concluded that "interest groups have injected themselves into the process . . . as we study the politics of judicial confirmations, we need to integrate this new phenomenon into our models and analysis."6
Although many observers of the Bork nomination believed that interest group interference in his confirmation was novel, such participation in confirmation proceedings was not entirely a new phenomenon by 1987. As early as 1930, the National Association for the Advancement of Colored People (NAACP) and organized labor participated in confirmation hearings for John J. Parker, President Herbert Hoover's nominee to the Supreme Court.7 The American Bar Association's Standing Committee on Judiciary began responding to official Senate requests for evaluations of judicial nominees' fitness for office in 1948,8 and during his chairmanship of the Senate Judiciary Committee in the late 1970s and early 1980s, Senator Edward M. (Ted) Kennedy (D-Mass.) frequently invited interest groups to testify at confirmation hearings.9 All in all, between 1977 and 1986, the year before Bork's nomination, interest groups participated in 15% of Senate confirmations for federal judicial nominations.10
Interest group participation in the confirmation process prior to 1987 likewise was not limited to judicial nominees. For example, interest groups participated in 91 percent of the confirmation hearings (10 of 11) for President Jimmy Carter's nominees to his cabinet in 1977. In 1981, interest groups participated in 92 percent (11 of 12) of the confirmation hearings held on Ronald Reagan's first-term cabinet nominees.11
The 1970s -- A Pivotal Decade
Interest group participation in confirmations began in earnest during the late 1960s and was fueled by both structural and political changes to the process used to consider presidential nominees. As Mark Silverstein has documented in Judicious Choices: The New Politics of Supreme Court Confirmations, prior to President Lyndon Johnson's nomination of Abe Fortas to be Chief Justice of the United States Supreme Court in 1968, presidents needed only to convince the Senate leadership to endorse their choices even for nominations to major positions. 12 The Senate's norms of apprenticeship and deference meant that junior senators could virtually always be counted on to fall in line with their party leaders.13 However, during the floor debate on Fortas's confirmation, young, reform-minded senators filibustered and ultimately defeated Fortas, despite the fact that President Johnson had already obtained commitments from key senior senators to ensure confirmation.14 The Fortas defeat signaled that presidents should not simply assume that rank-and-file senators were unimportant to confirmation decisions.
As the Senate's norms changed, so too did some of its practices relating to the confirmation process. Prior to 1970, the confirmation process in the Senate was largely ad hoc, with committees employing varying levels of scrutiny (and sometimes none at all) to the president's nominees. During the 1970s, however, Senate committees began to institutionalize their process of evaluating nominees. Driven in part by the Watergate scandal and a general mistrust of the White House, the Senate began to establish its own formal processes, including detailed financial disclosure requirements and, in most cases, the requirement of a formal hearing before the committee of jurisdiction in order to be considered.
Simultaneous with the erosion of Senate norms and the institutionalization of the confirmation process within the Senate, the federal courts were proving to be more responsive than was the Congress to the concerns of many of the interest groups that had formed during the interest group explosion of the 1960s. As Silverstein explains: "With the coming of the Burger Court in the 1970s, an assortment of . . . interests -- for example, environmentalists, feminists, consumer groups, political reformers -- found in the judiciary an attractive alternative to the other branches."15 The groups recognized that the courts offered an alternative venue for securing preferred policy outcomes. For that same reason, the groups also began to target nominees to the executive branch; their logic was that if they could influence who sat at the top of a bureaucratic agency or department they might also influence the rules, regulations, and implementation strategies produced by that bureaucracy.
These three changes -- the breakdown in
Senate norms, more formal committee processes, and judicial openness to
the claims of interest groups -- coincided to encourage greater interest
group participation in confirmations. Although Flemming, MacLeod, and
Talbert have noted that "Before Nixon's election, groups testified
infrequently"16 at confirmation hearings, Stephen Carter
noted in 1994 that "in the past twenty years there has been a
consistently high degree of involvement by interest groups."17
Thus, the participation of interest groups in the Bork confirmation was
hardly unprecedented. While the extent to which groups were galvanized
by the Bork nomination in 1987 might have been surprising, few close
observers of Senate confirmations in 1987 would have found the presence
of interest groups in the process to be unusual.
The Post-Bork Era
If the presence of interest groups in the confirmation process was not itself a surprise, the tactics that the groups employed during the Bork confirmation battle gave observers both inside and outside of the Senate pause. In particular, the interest groups focused their efforts not just internally on members of the Senate. Instead, the groups waged a public, grassroots campaign. As Robert Katzmann has written: "With the Bork confirmation proceedings came a new dimension to interest group activity. In addition to trying to influence senators directly, several groups sought to reach public opinion."18 It was not long before the groups applied their new, successful techniques to other executive and judicial branch confirmation proceedings. For example, four years after Bork's defeat, President George H.W. Bush's nominee to the Supreme Court, Clarence Thomas, faced a barrage of media attention when former co-worker and attorney Anita Hill alleged that Thomas had sexually harassed her. Although Thomas was eventually confirmed (by as narrow a margin as that which had defeated Bork), Thomas's supporters accused liberal interest groups of fueling senatorial and public concerns about his fitness to serve. During both the Bork and Thomas proceedings, some Republican senators and their staffs argued that the Democrats were manipulating the confirmation process by encouraging and even mobilizing the participation of outside interests who were hostile to the nominees.
Not only did the success of the public campaign against Bork lead interest groups away from focusing solely on senators to influence the confirmation process, additional procedural changes to the confirmation process increased the necessity for groups to find alternative means to affect confirmation outcomes. Soon after the Republican Party regained control of the Senate in 1995, newly appointed Judiciary Committee chairman Orrin Hatch adopted a policy prohibiting interest groups from testifying at confirmation hearings. In February 1997, Hatch ended the formal involvement of the American Bar Association (ABA) in the confirmation process for judicial nominees, telling his Judiciary Committee colleagues: "While the ABA certainly has the right to conduct itself as a political interest group, I think it is inappropriate for such a group to play any formal, officially sanctioned role in evaluating judges."19 Hatch's decision came several months after the House Republican Policy Committee declared: "The ABA consistently prefers liberal nominees to equally well-qualified conservatives . . .[the group] has no right to a formal role in the process of judicial selection or confirmation."20
The distinction between the formal and informal roles that groups play in the confirmation process is an important one. In the aftermath of Hatch's decisions limiting formal participation in the confirmation process, the number of interest groups testifying at confirmation hearings for federal judges fell to nearly zero, although the groups have continued to appear during confirmation hearings for cabinet secretaries-designate. When they are barred from offering testimony during confirmation hearings, however, the groups use a variety of other techniques to influence senators. So-called "blast faxes," and letters to senators today are common, as are the kinds of fundraising campaigns that both the Judicial Selection Monitoring Project and People For the American Way have used in the past.
Another informal strategy that the groups began to employ in the 1990s is the use of congressional "scorecards" and annual ratings to encourage senators to view their confirmation decisions as linked to future electoral considerations. More than 100 interest groups routinely publish vote scorecards, and many prominent groups such as the Christian Coalition have added confirmation votes to their list of "key votes."21 According to a Republican Judiciary Committee staff member: "I've noticed for certain controversial nominees, [the groups] send out letters saying 'We're gonna score your vote on this person's nomination.' That's kind of a new angle and I think that absolutely has an effect."22 A Democratic staffer echoes: "The reason a bunch of judges received 'no' votes is because the Christian Coalition and other groups came out and said 'we're scoring.' To some senators, having 100 percent record with some groups helps define their record."23 Sitting senators agree. One U.S. Senator, speaking on the condition of anonymity, added: "This is a very complex issue. [A senator] may not want an interest group beating them up. If an interest group says 'this is a key vote, we're watching this vote,' then the easy thing to do is to vote the way the group wants."24 Another said: "My colleagues who have announced their intention to seek reelection are often more sensitive to these interest groups and pay close attention to the messages of these groups."25
Looking Ahead
Interest group participation in the confirmation process did not begin with Robert Bork in 1987 nor did it end when he was rejected. Interest groups have closely watched the Senate confirmation process since the 1970s and they continue to be important actors. Few who have studied the process doubt that the groups have the ability in some cases to alter its outcomes. Emboldened by high-profile successes, such as the rejection of Robert Bork in 1987, the stonewalling of President Clinton's nominee to be ambassador to Luxembourg James Hormel, and the delay of countless nominees to the cabinet and lower federal courts, interest groups are unlikely to abandon their interest in the Senate confirmation process in the foreseeable future.
While interest groups have lost much of their formal stature in the confirmation process, they continue to exert significant influence behind the scenes and even have been able to link the confirmations of lower federal court judges and the U.S. Surgeon General to senators' future electoral chances through the use of vote scorecards. Recently, interest groups have been accused of illegally offering campaign funds and other perks to Democratic members of the Senate Judiciary Committee in exchange for blocking President George W. Bush's nominees to the federal courts. Dubbed "memogate" by concerned Democrats, the New York Times and the Washington Times ran excerpts from the dozens of Democratic staff memos found by a low-level Republican Judiciary Committee staff member. The content of the memos leaves no doubt that interest groups have in the recent past coordinated their confirmation strategies with members of the Senate Judiciary Committee.
Senate confirmations, once free from the kinds of political maneuverings that have long plagued the legislative process, today bear more and more resemblance to both the legislative and electoral processes than ever before. On the one hand, these interests provide a vital point of connection for senators and their constituents. When the communication between interest groups, senators, and the public is limited to the truthful communication of factual information, the groups' involvement in the process is all for the good. Too often, however, the interest groups have distorted nominees' records, skirted the Senate's legal and ethical rules, and mobilized the public against qualified nominees. As a result, the confirmation process -- once intended to shed light on a president's nominees and their qualifications and fitness for office -- today frequently obscures the facts in favor of maximizing political gain for narrow interests. This is not how the process was supposed to work.
Notes
1. People for the American Way, Fundraising Pledge Card, 2003.
2. Judicial Selection Monitoring Project, "Memorandum of Commitment,"1998.
3. Lauren C. Bell, Warring Factions: Interest Groups, Money, and the New Politics of Senate Confirmation (Columbus: The Ohio State University Press, 2002).
4. Bruce C. Wolpe, Lobbying Congress: How the System Works (Washington, D.C.: Congressional Quarterly Press, 1990), 113.
5. Ronald J. Hrebenar, Interest Group Politics in America (3e) (Armonk, NY: M.E. Sharpe, 1997), 4.
6. Gregory A. Caldeira, "Commentary on Senate Confirmation of Supreme Court Justices: The Roles of Organized and Unorganized Interests," Kentucky Law Journal 77, 531.
7. John A. Maltese, The Selling of Supreme Court Nominees (Baltimore, M.D.: Johns Hopkins University Press, 1995) 56-69.
8. American Bar Association, "Standing Committee on Judiciary" (Washington, D.C.: American Bar Association, undated).
9. Bell 2002.
10. Ibid. 120.
11. Ibid. 132.
12. Mark Silverstein, Judicious Choices: The New Politics of Supreme Court Confirmations (New York: W.W. Norton, 1994) 19.
13. Donald Matthews, U.S. Senators and Their World (New York: Vintage Books, 1960).
14. Silverstein, 27.
15. Ibid, 62.
16. Roy B. Flemming, Michael C. MacLeod, and Jeffrey Talbert, "Witnesses at the Confirmations? The Appearance of Organized Interests at Senate Hearings of Federal Judicial Appointments, 1945-1992," Political Research Quarterly 51(3) (September 1998), 620.
17. Stephen L. Carter, The Confirmation Mess (New York: Basic Books, 1994), 78.
18. Robert A. Katzmann, Courts and Congress (Washington, D.C.: The Brookings Institution Press, 1997) 35.
19. Senator Orrin Hatch, Letter to Members of the Senate Judiciary Committee, February 24, 1997.
20. House Republican Policy Committee, "Policy Statement on the Judicial Selection Process," September 13, 1996.
21. Bell 2002, 81-82.
22. Interview by author, February 1998.
23. Interview by author, November 1998.
24. Interview by author, July 2000.
25. Interview by author, August 2000.
A former Carl
Albert Center Fellow, Lauren C. Bell is assistant professor of political
science at Randolph-Macon College in Ashland, Virginia. Her
research interests include the Senate confirmation process and
congressional procedure. She is the author
of Warring Factions: Interest Groups, Money, and the New Politics
of Senate Confirmation (Ohio State University Press, 2002).
Her email address is lbell@rmc.edu.
Copyright, The Carl Albert Center