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95 Judicature 126 (2011-2012)
Strict Scrutiny

handle is hein.journals/judica95 and id is 126 raw text is: STRICT SCIRUTLINY?
R ...
The Bush years presented a period
of contentious clashes over nominees
to the federal bench, yet the level of scrutiny
facdby nominee s varied substantially.

In May of 2001 when President G.W.
Bush was preparing to announce his
first set of nominees to the federal
bench,  Senate  Democrats   were
gearing up for the approaching con-
firmation hearings. The New York
Times noted that Senate Democrats
have pledged they will not auto-
matically vote to confirm Mr. Bush's
judicial nominees and will subject
them to intense scrutiny.' The sub-
sequent battles did not disappoint. A
few high-profile nominees generated
significant controversy. Circuit court
nominee Miguel Estrada withdrew
his nomination  after Democrats,
angry that he was not as forthcom-
ing as they would have liked in his
confirmation hearing and in provid-
ing other documentation, mounted
an indefinite filibuster.2 Democratic
senators used confirmation hearings
to grill Ohio Supreme Court justice
Deborah Cook about her high number
of dissents; to dissect circuit court
nominee Jeffrey Sutton's history with
disability law; and to investigate Cali-

fornia Supreme Court Justice Janice
Rogers Brown's views on federalism.
For their part, Republican senators
also participated in this legislative
conflict with a symbolic talk mara-
•thon and sustained messages to the
media that Democratic obstruction
was inappropriate.3
These anecdotal accounts corre-
spond with scholars' assessments that
federal judicial nominations became
increasingly divisive during this time.4
The Bush years represent a period of
contentious clashes over nominees
to the federal bench that included
debate of the nuclear option and the
appropriateness of blocking judicial
confirmations.5 However, from a more
systematic standpoint, it is unclear
what exactly it means to subject nom-
inees to intense scrutiny.
Confirmation hearing transcripts
reveal nominees' experiences before
the judiciary Committee are not
uniform. For example, five senators
asked Paul Cassell, nominee to be
District Judge for the District of Utah,

72 questions during his confirmation
hearing, whereas Virginia Coving-
ton, nominee to the Middle District
of Florida, received zero questions
during her hearing. While both nomi-
nees were ultimately confirmed as
District Court judges, the degree
to which the Judiciary Committee
members scrutinized the nominees
varied substantially. This article
explores partisan, political, and nom-
The authors thanks Paul Collins, Bethany
Blackstone, David Richert, Bonnie Harris and
the anonymous reviewers for valuable feedback.
The authors also gratefully acknowledge the
support of the Political Science Department at
Oklahoma State University. Additionally, they
thank Courtney Baker, Nick Cunningham and
Carly Mayes for their research assistance.
1. Neil A. Lewis, Bush to Nominate 11 to Judge-
ships Today, N.Y. TIMES, May 9, 2001.
2. Neil A. Lewis, Filibuster on Judgeship Halts
Business in the Senate, N.Y. TIMES, February 12,
3. e.g., id., A Manufactured Crisis on Judges, N.Y.
TIMES, November 10, 2003.
4. Sarah Binder and Forrest Maltzman, Advice
and Consent During the Bush Years; The Politics
of Confirming FederalJudges, 92 JUDICATURE 320
(2009), at 320.
S. Id.

126 JUIAU4W4  N* NLM     ' / IC :MBEk f20  *  \'IH95 NO 3

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