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Show Filibustering the Filibuster: A Reexamination of the Legislative Role in Establishing A Fair Judiciary Adam Reiser Hence, senators often search from as many other sources as possible to find out the real judicial intentions and views of a nominee. Interest groups are often the sources of this information and so become pivotal players in senators' voting decisions. Arthur Denzau and Michael Munger commented, "Our explanation for why interest groups are an important part of the legislative equation is that they play a vital role in providing the information that senators and constituents use to resolve their uncertainty about policy and politics" (Denzau and Munger, 1986, p. 90). Caldeira and Wright commented: By providing information to senators and their constituents about how nominees are likely to behave on the Court if confirmed; and by communicating information about constituents' preferences through grassroots lobbying campaigns, interest groups help shape senators' preferences for nominees and inform them about the appropriate importance to attach to constituency preferences...Our empirical analyses indicate that interest group lobbying has a statistically significant effect on senators' confirmation votes (Caldeira and Wright, 1998, p. 499). Interestingly, Caldeira and Wright's research indicates that the confirmation decisions of Robert Bork and Clarence Thomas would have been different had lobbying efforts changed. According to Caldeira and Wright, had the lobbying effort against Bork been decreased by 50%, he would have been confirmed; had the lobbying effort in favor of Thomas been reduced by only 10%, he would not have been confirmed (Caldeira and Wright, p. 501). Filibustering Judicial Nominations The increased influence of interest groups in judicial nominations has led senators to more regularly vote down judicial nominations, or use tactics to block judicial nominations from receiving a vote, as evidenced by Figure 4 (Scherer, 2OO5,p. 2). "Rejected by procedure" may be referring to many tactics senators use to thwart an unwanted nomination; one such tactic is the filibuster. A "filibuster" is the use of dilatory or obstructive tactics to block a measure by preventing it from coming to a vote (Congressional Research Service, 2003a, 2). If a judicial nomination is filibustered until the end of the Congressional session, the name is returned to the president. The president is under no obligation to re-nominate the judge, and, especially in cases where there is a change in the White House, often chooses not to. The filibuster is especially effective in presidential election years. In these years there is not only an opportunity for the minority to gain the Senate majority and reject any re-nominated, unwanted nominees by vote, but there is also the possibility of a party change in the White House. A presidential party change will usher judges not suitable to the new president off the nomination agenda entirely and replace Figure 4 Percentage of lower court nominations not confirmed (rejected by vote or procedure) by Senate, 1933-2002 11 m PI -fHh I Percentagel Nominating President them with judges sharing the president's own ideology-President Reagan chose to re-nominate only 18% of President Carter's pending nominations, President Clinton chose to re nominate only 6% of President George H.W Bush's nomina' tions, and President George W Bush chose to re-nominate only 22% of President Clinton's pending nominations (Congressional Research Service, 2003b, p. 42). A presidential party change is also responsible for the first recorded successful filibuster of a judicial nomination, Abe Fortas. Fortas was nominated as Chief Justice of the Supreme Court in 1968, but a Republican minority, antici' pating a Richard Nixon win in the fall's presidential election, filibustered him. True to the Republican prediction, Nixon did take over the White House in 1969, Fortas was never allowed a vote for Chief Justice, and newly elected Nixon instead appointed the conservative Warren Burger to the high post on the Court (Epstein and Segal 2005, 24). Figures 5 and 6 (Congressional Research Service, 2003b, p. 27) display recent percentages of judges whose nominations were pending at the end of Congressional sessions. A revealing feature of the graphs is the significant increase of pending nominations in presidential election years. Senators appear to be recognizing that an upcoming election may bring a new president who is willing to offer fresh appointments to vacant judicial seats and so senators are keeping an increasing number of unwanted nominees from receiving floor votes in presidential election years. However, it is important to note that filibusters are not the only tactic used to prevent a nominee from receiving a floor vote; there may be many reasons for a "pending nomi' nation." Most obvious is that the Senate has a busy agenda and may not always get around to voting on a nominee before a Congressional session ends, particularly those that were nominated late in the session. However, the dramatic increase in pending nominations in recent years indicates that there is more than a busy agenda preventing nominees from receiving a floor vote. 64 |