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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 ... by LOGAN DANCEY, ERSTEN R. ELSON -ind EVE M. RNGS-MUTH 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, 2003. 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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