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Filibuster Change and Judicial Appointments

By Jonathan Remy Nash & Joanna M. Shepherd

Abstract

In this article, we consider the effects of filibuster change on judicial appointments, judicial voting, and opinion drafting. The filibuster effectively empowers a minority of 41 senators by requiring 60 votes to break off debate on a nomination. We develop a game‐theoretic model that explains that the elimination of the filibuster changed the relevant “pivotal senator,” whose support was necessary to secure a nomination. Freed of the power of the minority of senators, presidents ought to exercise freer rein in naming judicial nominees closer to their preferred ideology. Moreover, sitting judges who seek elevation to a higher court ought to alter their “signal” that they would be good candidates to match the preferences of the newly relevant pivotal senator.

To test our hypotheses empirically, we use the 2013 elimination of the filibuster in the U.S. Senate for lower federal court judicial nominations as an exogenous shock. We explore how the change in the filibuster rule affected the characteristics of judges President Obama nominated to the federal courts. We find statistically significant shifts in the background characteristics of judges confirmed to the federal courts of appeals after the elimination of the filibuster. Compared to the earlier Obama appointees, these judges were more likely to be female, slightly younger, and to have previously clerked for a liberal judges, but less likely to be nonwhite. In addition, we find that there was a statistically significant increase in the confirmation of judges with liberal ideologies, as measured by their common space campaign finance scores. These liberal ideologies mapped onto actual votes in politically charged cases. Compared to Obama judges confirmed before the rule change, these judges were more likely to cast pro‐choice votes in abortion cases and anti‐death penalty votes in death penalty cases. We also find evidence that the elimination of the filibuster had a polarizing effect on sitting federal district judges, especially those with a greater chance of promotion to the courts of appeals. Using computational content analysis, we find that after the change in the filibuster rule, Democratic judges were more likely to use politically charged words signaling their very liberal ideological positions in abortion opinions and Republican judges were more likely to use words signaling their conservative views. These findings are useful in assessing the desirability of restoring the judicial filibuster, as well in assessing the debate over the retention of the legislative filibuster.

I. Introduction

Commentators have observed that President Donald Trump has been “remaking” the lower federal courts with numerous successful nominations of federal district court judges and courts of appeals judges. President Trump has been able to do this despite the fact that Republicans constitute little more than a bare majority of the Senate. In contrast, Republican efforts to advance legislation have not been as successful because they have run into the Senate filibuster. The filibuster effectively empowers a minority of forty-one Senators by requiring sixty votes to break off debate on a proposal.

Prior to November 2013, the filibuster applied as well to judicial (and other) nominations. But then-President Barack Obama and Senate Democrats, who (together with jointly-caucusing independents) controlled 55 Senate seats, grew frustrated at Republican efforts to use the filibuster to delay and obstruct President Obama’s lower federal court nominations. Accordingly, in November 2013, the Senate voted to “clarify” that the filibuster did not apply to lower federal court nominations. This allowed three then-pending controversial nominations to the U.S. Court of Appeals for the District of Columbia Circuit to move forward. 

There is little doubt that the elimination of the filibuster allows the President to fill judicial vacancies more quickly, which in turns enables the President to appoint a larger number of judges. But beyond this, what effect does the elimination of the filibuster have on the judiciary? Might a President unburdened by the filibuster nominate, and might the Senate in the absence of the filibuster confirm, judges with different characteristics and ideologies? And might sitting judges—even judges appointed by other Presidents—be affected by the elimination of the filibuster? Sitting judges might see the elimination of the filibuster to affect the calculus of which judges are selected for elevation to a higher judicial position, and change their behavior accordingly.

These questions are important in light of the uncertain future of the filibuster. The future of the filibuster remains very much in flux. Democrats are split on whether, if they retake majority control in the Senate, to reintroduce the filibuster for judicial nominations or instead to proceed (especially with a Democratic President) to “pack the courts” themselves.

Debate over the reinstating filibuster for judicial nominations is part of a larger debate over the broader future of the filibuster. President Trump endorsed the idea of eliminating the legislative filibuster with the Senate in Republican hands. On the Democratic side, support for the idea (whenever Democrats may retake control of the Senate) has been voiced by former President Obama and former Democratic Senate Majority Leader Harry Reid; some Senators—including some who sought the 2020 Democratic presidential nomination—have expressed support for, or openness to, the idea. At the same time, other 2020 Democratic presidential candidates voiced opposition to the idea, as have sitting Senators on both sides of the aisle.

In this Article, we shed light on the effects of the elimination of the filibuster. We use a game-theoretic model involving appointments to the federal courts of appeals to develop predictions about the impact of the elimination of the judicial filibuster. One would think that, freed of the power of the minority of Senators, President Obama ought to have had, and exercised, freer rein in naming nominees to the courts of appeals closer to his preferred ideology. Moreover, one would expect sitting judges who sought elevation to a higher court to alter their “signal” that they would be good candidates to match the preferences of the newly-relevant pivotal Senator—that is, the Senator ideologically closest to the President whose support the President requires to obtain a successful confirmation vote. In short, we should expect after the change to the filibuster rule (i) President Obama to have named and the Senate to have confirmed more liberal judicial nominees to the courts of appeals, and (ii) sitting federal district judges appointed by Democratic Presidents to behave more liberally and sitting federal district judges appointed by Republican Presidents to behave more conservatively.

We validate these hypotheses empirically. We find statistically-significant shifts in the background characteristics of court of appeals judges confirmed after the elimination of the filibuster. Compared to the earlier Obama appointees, these judges were more likely to be female, slightly younger, and to have previously clerked for a liberal judges, but less likely to be non-white. In addition, we find that there was a statistically-significant increase in the confirmation of court of appeals judges with liberal ideologies, as measured by their common space campaign finance scores. These liberal ideologies mapped onto actual votes in politically-charged cases. Compared to Obama judges confirmed before the rule change, the judges were more likely to cast pro-choice votes in abortion cases and anti-death penalty votes in death penalty cases. We also find evidence that the filibuster’s elimination had a polarizing effect on sitting federal district judges. Because the change in the filibuster rule altered judges’ expectations about how to maximize their chances of promotion, it likely affected their signaling behavior in their written opinions. Using computational content analysis, we find that, after the elimination of the filibuster, Democratic district court judges used more liberal language and Republican district court judges generally used more conservative language when authoring opinions in abortion cases. These effects are greatest for younger district judges, suggesting that judges with a greater chance of promotion are more likely to alter their signaling behavior in response to the change in the filibuster rule. 

Our findings strongly suggest that the elimination of the judicial filibuster likely leads to a more polarized judiciary. Extrapolating, our findings suggest that the elimination of the legislative filibuster likely would lead to more polarized legislation.

While, we take no position here on the normative attractiveness of the legislative filibuster, we take note of arguments on both sides. There is a strong argument that the legitimacy of the judiciary is put at risk by a more polarized judiciary (or even a judiciary that is perceived to be more polarized). On the other hand, Eric Posner has argued that more extreme judges on one side of the political spectrum might be a desirable counterbalance to more extreme legislation enacted by political branches on the other side of the spectrum. On this line of argument, the elimination of the judicial filibuster might be more normatively desirable in the absence of the legislative filibuster. 

Part II of this Paper discusses the role of the Senate in the confirmation of lower federal court judges. It includes an extended discussion of the history of the filibuster in general, and of the filibuster in the context of judicial nominations. Part III develops the intuitions behind a game-theoretic model of how the President will nominate, and the Senate will confirm, nominees to the federal courts of appeals. (We leave the details of the model to the Mathematical Appendix.) That model allows us to examine how the change in the filibuster rule might affect the ideology of successful judicial nominees. Part IV presents the empirical strategy and results of several different analyses. Finally, Part V discusses the results and provides normative context.

—from Filibuster Change and Judicial Appointments, 17.4 Journal of Empirical Legal Studies 646 (2020)