To “Advice and C̶o̶n̶s̶e̶n̶t̶Delay”: The Role of Interest Groups in the Confirmation of Judges to the Federal Courts of Appeal

Campbell, Donald E. | November 26, 2012

Political and partisan battles over nominees to the federal courts of appeal have reached unprecedented levels. This article considers the reasons for this change in the process. Using evidence from law and political science, this article proposes that current confirmation struggles are greatly influenced by increased involvement of interest groups in the process. The article tests the role of interest groups through an in-depth examination of George W. Bush’s nomination of Leslie H. Southwick to the Fifth Circuit Court of Appeals. Utilizing the Southwick case study, the article provides evidence of how interest groups impact the confirmation process by designating certain nominees as “controversial.” The article proposes that the “controversial” label impacts how senators and the public view particular nominees and has had a direct and significant impact on the fate of nominees. Specifically, interest groups shift the incentives of individual senators, prompting senators to utilize institutional tools of delay in an effort to defeat nominees. The conclusion is that only structural changes adopted by the Senate as a whole—such as setting strict time limits on addressing nominations, or eliminating the filibuster for judicial nominees— can resolve the politicalization of the confirmation process.