86 Judicature 251 (2002-2003)
Assessing the Senate Judicial Confirmation Process: Index of Obstruction and Delay

handle is hein.journals/judica86 and id is 251 raw text is: Assessing the Senate
judicial confirmation process:
The Index of Obstruction and Delay
A summary index offers a simple new way to measure objectively the
phenomenon of obstruction and delay in confirm/hg federal judges
by Sheldon Goldman

bstruction and delay by the
U.S. Senate of the confirma-
tion of nominations to the two
principal lower federal courts is a
subject of ongoing debate. But how
extensive is such obstruction and de-
lay? Is there an objective way to mea-
sure this phenomenon? This article
suggests a summary index that can
help us do so.'
A dramatic, relatively recent ex-
ample of confirmation delay con-
cerned Judge William A. Fletcher of
SHELDON GOLDMAN is a professor
of political science at the University
of Massachusetts, Amherst.
the U.S. Court of Appeals for the
Ninth Circuit. Fletcher was first
nominated by President Bill Clinton
on April 25, 1995 and had his first
hearing on December 19, 1995. On
May 21, 1996, he was favorably re-
ported by the Senate Judiciary Com-
mittee to the Senate but no floor vote
was taken by the end of the 104th
Congress.
Fletcher was renominated onJanu-

ary 7, 1997, and a second hearing was
held on April 29, 1998. Once again
he was favorably reported-this time
the following May 21. He was finally
confirmed on October 8, 1998, about
three and one-half years after he first
was nominated. For the courts of ap-
peals during the last six years of Bill
Clinton's presidency when Republi-
cans controlled the Senate, eight
nominees took more than one year
from nomination to confirmation.
Another 36 nominees never made it
I would like to thank the Law and Social Sci-
ence program of the National Science Founda-
tion (NSF grant SBR-9810838), which supported
in part the gathering of some of the data for this
article. The NSF bears no responsibility for the
conclusions drawn herein. I am also grateful to
Commonwealth College of the University of Mas-
sachusetts at Amherst for providing research as-
sistance. Michael Conlow has my great apprecia-
tion for all his help. Note that much of this
article draws heavily from portions of my article
Unpicking Pickering in 2002: Some Thoughts on the
Politics ofLowerFederal Court Selection and Confirna-
tion, 36 U.C. DAvis L. REv. 695 (2003).
1. There is no attempt here either to analyze
systematically by way of a statistical model of the
correlates of obstruction and delay or
to provide any detailed discussion of its political
context. Others have ably done this. See Bell,
WARRING FACTIONS: INTEREST GROUPS, MONEY, AND
THE NEW POT tICS OF SENATE CONFIRMATION (Colum-
bus, Ohio: The Ohio State University Press,
2002); Hartley and Holmes, The Increasing Senate

to confirmation-28 of whom did
not even have hearings.
Susan Mollway was nominated by
President Clinton to the U.S. District
Court for Hawaii on December 21,
1995. Her first hearing was on March
27, 1996. She was favorably reported
by the Senate Judiciary Committee
on April 25, 1996 but no floor vote
was taken and the nomination died.
She was renominated on January 7,
1997, and had a second hearing on
February 4, 1998. Once again she
Scrutiny of Lower Federal Court Nominees, 117 POL.
Sci. Q. 259 (2002); Binder and Maltzman, Sena-
torial Delay in Con firming Federal Judges, 1947-
1998, 46 AM. J. PoL. ScI. 190 (2002); Martinek,
Kemper, and Van Winkle, To Advise and Con-
sent: The Senate and Lower Federal Court Nomina-
tions, 1977-1998, 64 J. PoL. 337 (2002);
Schraufnagel, The Decline of Comity in Con-
gress and Delay in the Confirmation of Federal
Judges, 1977-2000 (April 2002), (unpublished
paper presented at the Annual Meeting of the
Midwest Political Science Association); Nixon
and Goss, Confirmation Delay,for Vacancies on the
Circuit Courts of Appeals, 29 Am. Pot. RES. 246
(2001); Hartley, Senate Delay of Minority Judicial
Nominees, 84 .]tiCAlURE 191 (2001); Hartley
and Holmes, Increasing Senate Scrutiny of Lower
Federal Court Nominees, 80 JUDICATURr 274
(1997); Goldman, TheJudicial Confirmation Cri-
sis and the Clinton Presidency, 28 PRESInENTIAL
STUD. Q. 838 (1998); and Allison, Delay in the
Senate Confirmation of Federal Judicial Nominees,
80 JUDICATURE 8 (1996).

March-April 2003  Volume 86, Number 5 Judicature 251

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