The Purpose of Senatorial Grandstanding During Supreme Court Confirmation Hearings
with Elizabeth Lane and Miles T. Armaly
Conditionally Accepted, Journal of Law and Courts
U.S. Supreme Court confirmation hearings provide senators with an opportunity to engage a potential justice on a nationwide stage. Senators probe for information about the potential justice’s future behavior on the bench. Nominees bob and weave through the tangle of questions, oscillating between forthcoming and vague responses. Such behavior encourages popular narratives that characterize this intricate dance as a “vapid and hollow charade” or an “exercise in obfuscation.” We challenge this wisdom and argue that senators use these hearings to provide meaningful representation to their constituents while simultaneously supporting co-partisan efforts to contest or champion the nominee. We examine the exchanges in 185 senator-nominee pairings that span nearly 30 years of confirmation hearings. Our results show that senators from both parties increase their question-asking activity during divided government, when confirmation success is more dubious. Senators from the president’s party will ask fewer questions when their constituents support the nominee, however, suggesting that popular support can attenuate this general effect for senators expecting a successful confirmation.
Confessions at the Supreme Court: Judicial Response to Solicitor General Error
with Nicholas W. Waterbury
As the chief litigator for the United States government, the Solicitor General has a unique relationship with the United States Supreme Court. In exchange for providing valued expert information on a multitude of cases before the Court, the justices grant him unparalleled influence over their agenda setting and merits decisions. In this paper, we are the first to examine how this relationship is altered when the Solicitor General formally confesses to making an error. We expect that when the Solicitor General notifies the Court that U.S. government litigation led to an incorrect judicial ruling, he suffers reputational damage in the eyes of the justices. Using a dataset containing cases and confessions from 1979-2014, we find the Solicitor General is significantly less likely to win a vote from a justice after formally confessing error. We also find that confessions of error reduce the likelihood the justices cast a vote in favor of the Solicitor General’s side when he files an amicus brief. Further, we find a harsher punishment is given to Solicitors General who already have a history of betraying the office’s apolitical nature. These results provide new insights on the origins and the scope of the benefits given to the Supreme Court’s most prominent litigant.
A Winning Strategy: How Attorneys Use Vanity Citations to Sway Justices
with Elizabeth Lane
Discussions about Supreme Court decision-making almost always devolve into conversations about attorney strategy toward the median justice. Such conversations suggest attorneys are strategic in how they approach the justices, carefully crafting their briefs and oral argument discussions to persuade at least five justices to their side. We seek to better understand how attorneys appearing before the Supreme Court appeal to the justices’ preferences and obtain their votes. Using citation data from a random sample of 75 search and seizure and Establishment Clause cases, we analyze the frequency with which attorneys cite sitting Supreme Court justices’ past decisions and the factors that influence their decision to do so. We then use that information to see if the attorneys’ strategic behavior effectively convinces the justices to side with them. We find that it does. Our results suggest that attorneys target ideologically-congruent justices as well as the median justice, and their decision to do so improves their likelihood of winning a justice’s vote.
Using Text Analysis of Merits Briefs to Study Attorneys’ Role in the U.S. Supreme Court Decision-Making Process
Supreme Court justices get their primary exposure to a case’s legal arguments and suggested outcomes when they receive merits briefs. These briefs are artfully-constructed documents whose chief goal is to convince at least five justices that one attorney’s answer to the question at hand is absolutely the right answer. Despite Supreme Court justices emphatically stating that legal arguments outlined in the briefs influence their decisions and opinions, few researchers have studied how attorneys’ discussions of relevant law influence judicial decision-making. I argue that studying the citation patterns in briefs allows scholars to better understand how and why attorneys construct their arguments the way they do. To show why approaching briefs in this manner is important, I use supervised machine learning techniques to “shepardize” attorneys’ treatment of citations in Supreme Court briefs in 60 privacy cases heard between the 1978 and 2005 terms.