The Purpose of Senatorial Grandstanding During Supreme Court Confirmation Hearings
with Elizabeth A. Lane and Miles T. Armaly
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 and the most successful attorney to appear before the United States Supreme Court, the Solicitor General has a unique relationship with the justices: they grant him unparalleled influence over their agenda-setting and merits decisions in exchange for his help managing their workload. This mutually-dependent relationship is built on years of trust in the Office of the Solicitor General’s expertise and is reinforced by the Solicitor General’s continued willingness to provide the justices with solid legal advice regardless of the political environment. In this paper, we are the first to examine how this relationship changes in the face of a formal admission of legal error by the Office of the Solicitor General. Using data on “confessions of error” filed between the 1979 and 2014 terms, we find that after the Solicitor General confesses error, Supreme Court justices are less likely to vote for the Solicitor General on the merits and follow his advice on cases to review. We suggest this punishment is subconscious in nature as it both persists regardless of the politicization of the Office of the Solicitor General and is temporary in length. These results provide new insight into the relationship between the Supreme Court and the so-called “tenth justice” as well as the scope and limitations of benefits allotted to the Supreme Court’s most prominent litigator.
A Winning Strategy: How Attorneys Use Vanity Citations to Sway Justices
with Elizabeth A. 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.
Call and Response: Legal Entrepreneurship and Attorney Success at the U.S. Supreme Court
Honorable Mention, Best Graduate Student Paper, Law and Courts Section, American Political Science Association
When attorneys approach Supreme Court justices, they find themselves attempting to answer legal questions that the brightest minds in the lower courts failed to resolve. The Supreme Court’s job is to address as-yet-unanswered questions, but the adversarial legal system requires attorneys do the work of finding the proposed answers and providing them to the justices first. Because attorneys do this in the one-sided written merits brief, however, approaching the justices also provides them with an opportunity to persuade and influence. Attorneys do this using one of two tactics: they can adopt the prevailing argument in a legal area and suggest the justices merely need to apply it in a new manner, or they can try to transform the justices’ understanding of an issue area by engaging in legal entrepreneurship. Using data from 1,509 cases the Supreme Court heard between the 1984 and 2007 terms, I examine how attorneys’ decisions to engage in legal entrepreneurship influences outcomes at the Court. I find that entrepreneurial arguments are common but offer limited advantages. Entrepreneurial arguments can help inexperienced and resource-poor petitioners win, but for everyone else, the approach neither helps nor hurts their odds of securing the justices’ votes.