Filibuster Change and Judicial Appointments

Abstract

In this article, we consider the effects of filibuster change on judicial appointments, judicial voting, and opinion drafting. The filibuster effectively empowers a minority of 41 senators by requiring 60 votes to break off debate on a nomination. We develop a game‐theoretic model that explains that the elimination of the filibuster changed the relevant “pivotal senator,” whose support was necessary to secure a nomination. Freed of the power of the minority of senators, presidents ought to exercise freer rein in naming judicial nominees closer to their preferred ideology. Moreover, sitting judges who seek elevation to a higher court ought to alter their “signal” that they would be good candidates to match the preferences of the newly relevant pivotal senator. To test our hypotheses empirically, we use the 2013 elimination of the filibuster in the U.S. Senate for lower federal court judicial nominations as an exogenous shock. We explore how the change in the filibuster rule affected the characteristics of judges President Obama nominated to the federal courts. We find statistically significant shifts in the background characteristics of judges confirmed to the federal courts of appeals after the elimination of the filibuster. Compared to the earlier Obama appointees, these judges were more likely to be female, slightly younger, and to have previously clerked for a liberal judges, but less likely to be nonwhite. In addition, we find that there was a statistically significant increase in the confirmation of judges with liberal ideologies, as measured by their common space campaign finance scores. These liberal ideologies mapped onto actual votes in politically charged cases. Compared to Obama judges confirmed before the rule change, these judges were more likely to cast pro‐choice votes in abortion cases and anti‐death penalty votes in death penalty cases. We also find evidence that the elimination of the filibuster had a polarizing effect on sitting federal district judges, especially those with a greater chance of promotion to the courts of appeals. Using computational content analysis, we find that after the change in the filibuster rule, Democratic judges were more likely to use politically charged words signaling their very liberal ideological positions in abortion opinions and Republican judges were more likely to use words signaling their conservative views. These findings are useful in assessing the desirability of restoring the judicial filibuster, as well in assessing the debate over the retention of the legislative filibuster.