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26 Cardozo L. Rev. 691 (2004-2005)
Dress Rehearsal Politics and the Case of Earmarked Judicial Nominees

handle is hein.journals/cdozo26 and id is 707 raw text is: DRESS REHEARSAL POLITICS AND THE CASE OF
David A. Yalof
1 am concerned.., that what we have here with Judge Pickering
is a warm-up for a later confirmation battle on the Supreme Court
-Senator Arlen Specter, March 7, 2002.1
The fires of lower court politics that raged through much of George
W. Bush's first term as President have provided considerable grist for
the commentators' mill-within these battles lie much for law
professors, social scientists, and journalists alike to consider as they
address the various themes that have characterized the modem state of
federal judicial appointments. Senator Charles Schumer's (D-N.Y.)
Senate Subcommittee on Administrative Oversight and the Courts held
hearings during the summer of 2001 to consider the role that ideology
should play in the selection of federal judges.2 In November of 2003,
the Senate Republicans' much ballyhooed marathon legislative session
to discuss the stagnant confirmation process produced thirty-nine hours
of rhetoric and competing statistical presentations-but little headway
in actually moving the nominations themselves forward. The Senate
Democrats' use of cloture rules to prevent votes on controversial
nominees during this past Congress has brought Senate parliamentarians
out of the woodwork-is there some historical precedent for the
minority party's refusal to allow judicial nominees to receive an up-or-
down vote on the floor of the Senate? More recently, a seemingly
obscure provision of Article 113 has provided the vehicle for President
* J.D. University of Virginia 1991; Ph.D. Johns Hopkins University 1997. Associate
Professor of Political Science, The University of Connecticut.
I Judicial Nominations: Hearings Before Sen. Comm. on Judiciary, 107th Cong. (2002)
(statement of Sen. Arlen Specter).
2 Hearings Before the Subcomm. on Admin. Oversight and the Courts, Sen. Comm. on
Judiciary, 107th Cong. (2001).
3 U.S. CONST. art II, § 2, cl. 3, states: The President shall have Power to fill up all
Vacancies that may happen during the Recess of the Senate, by granting Commissions which
shall expire at the End of their next Session.

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