Going Nuclear: Rule Manipulation and Judicial Nomination Efficacy

Abstract

The growing number of federal judicial vacancies impacts judiciary's ability to efficiently resolve litigation. This impact warrants an investigation of any factor that has the potential to affect the number of vacancies. This paper examines three factors in relation to the federal judicial nomination process. The examination is performed through a statistical analysis of judicial confirmation rates in relation to the elements. The elements of principal concern are: the National Labor Relations Board v. Noel Canning Supreme Court ruling, Harry Reid’s 2013 removal of the 60 vote requirement to invoke cloture on a nomination, and the mutable power assigned to blue slips. The data shows a complete stoppage of attempted recess appointments following the Supreme Court ruling. Due to calculated scheduling of pro forma sessions by Congress, there have been no recesses that exceed the necessary time frame established by the Supreme Court to make a recess appointment. The removal of th e 60 vote requirement to invoke cloture resulted in a 267% increase in confirmed nominees during the 113th Congress. This increase was not sustained through a divided Senate and executive, and the 115th Congress’s confirmation rate does not indicate the trend will continue. However, the data set is currently insufficient to make a final judgement on its impact. Blue slipping, as an uncodified procedure, has a variable influence on judicial nominees. A correlation between the chair of the Senate Judiciary Committee and nominee ideology suggests that chairmen are more likely to expedite the appointment of nominees with ideologies similar to their own.