Vol. 31 No. 2 (February 2021) pp. 57-59IT’S NOT PERSONAL: POLITICS AND POLICY IN LOWER COURT CONFIRMATION HEARINGS, by Logan Dancey, Kjersten R. Nelson, and Eve M. Ringsmuth. Ann Arbor, University of Michigan, 2020. 198pp. Cloth: $70.00 ISBN: 978-0-472-13183-9.
Reviewed by Rorie Spill Solberg, School of Public Policy/Political Science Program, Oregon State University. Email: solbergr@oregonstate.edu.
Justice Ginsburg, during a CNN interview in 2018, remarked that “[I]t is distressing when the people regard the judiciary as just another political branch of government” (CNN 2018). It is likely that Ginsburg would find much of our field’s work “distressing” as so much of it is predicated on the idea that the justices base their decisions on ideology rather than merely following the law. The eminent justice might have also found Dancey, Nelson, and Ringsmuth’s IT’S NOT PERSONAL: POLITICS AND POLICY IN LOWER COURT CONFIRMATION HEARINGS distressing, but for a different reason. This thorough and meticulous exploration of lower court confirmation hearings suggests that the members of the Senate treat most judicial nominations like they do any other congressional business. The classic explanations of congressional behavior offered by Fenno (1978; 1973), Kingdon (1973), and Mayhew (1974) travel seamlessly and explain the persistence of the confirmation hearings despite the rather dull and routine nature of most nominations. In other words, this is truly a book about Senate behavior and politics with judicial nominations working as the data; however, by using this lens we do also learn a great deal about the nature of run-of-the-mill confirmation hearings.
The question at the heart of this investigation is “Why do senators hold confirmation hearings for lower federal court nominees and what is the value of these hearings in the larger advice and consent process?” (p. 2) To answer these two questions, Dancey, Nelson, and Ringsmuth split the volume into three unequal parts and use data gathered from confirmation hearings running from 1993 through 2012. The first section examines the judiciary committee and confirmation hearings overall—who serves on the judiciary committee, and the details of the confirmation process (Chapters 2 and 3). The next section (Chapters 4, 5, and 6) examines noncontroversial hearings from three different perspectives. Noncontroversial hearings include all district court hearings and noncontroversial court of appeals confirmations. This focus may seem counterintuitive, but as the scholars argue in the introductory chapter, it makes sense. While the controversial nominee tends to gain attention and media coverage, these are relatively rare and not particularly useful for explaining why the senate persists in holding confirmation hearings, given the time and resources needed to do so, for nominees that are all but predetermined to be confirmed. Chapter 7 investigates the controversial Court of Appeals hearings and Chapter 8 concludes the volume by providing an overview of the findings, suggestions for the overall role that noncontroversial hearings play, and possible options for reform.
Chapter 3 is really the bird’s eye view of the hearings and the purpose of the book. It sets out to prove that most nominees are noncontroversial and that there really isn’t an audience for scoring points in these less salient hearings. This chapter also [*58] details the coding scheme for the content of the hearings and questions. Finally, this chapter reveals what is the norm for most hearings—how many questions are asked and by how many different senators, the likelihood of opposition, and how the hearings have varied across the time period.
Chapters 4, 5, and 6 are really the heart of the volume and all three, again, examine the noncontroversial hearing. Identifying noncontroversial hearings by the lack of interest group or NGO opposition, the scholars show in several different ways that these hearings are “not personal” or not individualized. Their main evidence is that neither the attendance of senators, number of questions, nor the questions asked focus on the individual. Rather the types of questions work across nominees to make larger points of public policy. While most of the volume relies on statistical analyses of a larger group of hearings, these scholars also employ a quick case study of four long-serving members of the Senate to show that their questioning of these noncontroversial nominees remains consistent regardless of who is sitting before them. Participation in these hearings, then, is best described as serving the goals of reelection and good public policy (à la Mayhew (1974), Fenno ( ), and Kingdon ( )) rather than necessarily scoring points with outside groups. For example, it is easy to predict which senators will attend these hearings. First, you will have senators from the nominee’s home state who take the opportunity to introduce the nominee and take credit for the nomination and targeting their geographic constituencies. Otherwise, the committee members present will be junior members, members with an institutional role to play, and members not running in the current election cycle.
Chapter 7 then turns to the controversial nominees. It is in these hearings that the vetting gets personal and the scrutiny is heightened. Yet, these scholars still show how the senators continue to pursue electoral and policy goals albeit pursued through different questions. In the noncontroversial hearing, questions are focused on decision making whereas here the questions hone in on particular issues relevant to the controversy or the nominee’s background. Additionally, they find that (1) there were more controversial nominees during George W. Bush’s presidency,(2) states with split delegations are less likely to present controversial nominees, (3) nominations to closely divided circuits are more likely to be controversial, and (4) the overall ABA rating for controversial nominees is lower.
I would argue that Chapter 8, the book’s final chapter, presents a better and more succinct statement of the book’s purpose. The authors then use the previous analysis to answer their initial question: why do senators expend the time and effort to hold, attend, and participate in hearings when the conclusion seems foregone? Hearings continue because it provides senators with a means to pursue electoral and policy goals. Additionally, the hearings introduce enough uncertainty to ensure that most nominees will be noncontroversial. In other words, presidents will avoid nominating controversial judges because of the credible threat of rejection. Finally, these hearings promote transparency and accountability.
IT’S NOT PERSONAL is a well-constructed and well-researched volume, though it doesn’t and couldn’t cover everything. First, the study only examines the potential for differential treatment between nominees in one short section in one chapter—does the questioning differ? It is unclear why they suddenly insert a section on race and gender and do not necessarily do so anywhere else. Second, [*59] the authors suffer from the passage of time. It takes so long to execute such a massive study that by the time it has concluded, there is the possibility that it is already outdated. The study ends before the invocation of the nuclear option at the end of the Obama presidency and before the Trump presidency. The scholars do a quick look in Chapter 8 and suggest that the nuclear option did not change their findings, though the question, I would argue, bears more investigation than could be accomplished here. More importantly, the norms of judicial confirmations may have eroded over the course of the Trump presidency to a point that does change the findings or conclusions. For example, more nominees with one or no blue slips returned have moved forward in the process. Does this change the nature of the hearings or the incentives of the senators? Does it change the number of controversial hearings? These, though, are questions for the future.
In conclusion, IT’S NOT PERSONAL is a scholarly study that provides us with background to understand fully the confirmation process and the role of the senate and senators. We can learn a great deal about this process by focusing on the salient and salacious nominees, but we wouldn’t be getting the full picture. We would only see the bright spots in the pattern without understanding the background weave that actually holds the entire fabric together.
REFERENCES:
CNN. 2018. Interview with Justice Ruth Bader Ginsburg on February 11, 2018. (https://www.cnn.com/videos/us/2018/02/11/rbg-on-attacks-on-judiciary-and-press.cnn/video/playlists/supreme-court-justice-ruth-bader-ginsburg/).
Fenno, Richard. 1973. CONGRESSMEN IN COMMITTEES. Boston: Little Brown.
Fenno, Richard. [1978] 2003. HOME STYLE: HOUSE MEMBERS IN THEIR DISTRICTS. New York: Longman.
Kingdon, John. 1973. CONGRESSMEN’S VOTING DECISIONS. University of Michigan Press: Ann Arbor.
Mayhew, David R. 1974. CONGRESS: THE ELECTORAL CONNECTION. Yale University Press: New Haven.
© Copyright 2021 by author, Rorie Spill Solberg.
