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INTRODUCTION
As presidents, Senators, interest groups and the public have increasingly realized the
importance of the makeup of the federal bench, their attention has turned to the judicial
confirmation process. Confirmations have become more contentious overall, nominees are
taking longer to move through the confirmation process, and battles over public policy are being
fought as nominees struggle to be confirmed. Thus, it is not surprising that many assume that
ideology and partisanship account for much of the delay characterizing the recent judicial
confirmation process. However, such a belief presents a straightforward empirical question:
What is causing judicial confirmations to be delayed, sometimes for months on end, or to be
“killed” completely?
To answer this important question, this paper examines what can happen to confirmations
once they receive home-state senator approval and start down the road to confirmation. It begins
by exploring the different ways in which judicial confirmations may be delayed once they reach
the Senate. Notably, all of the mechanisms discussed herein are ones only senators may use, and
they make up the “private political” arsenal of weapons utilized by senators to affect
confirmation outcomes.
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The second half of this paper then analyzes a key parliamentary
procedure by which senators can exert enormous influence over judicial confirmations, the
“hold.”
An informal custom that has been institutionalized over time, holds allow senators to
impede a confirmation once it has reached the Senate floor. By delaying – and sometimes totally
preventing – a confirmation from coming to a floor vote, individual senators employing holds
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“Private political” fights are those that take place outside of the public eye and involve senators using “hidden”
parliamentary procedures to delay or defeat confirmations. The use of these parliamentary procedures receives little
media coverage and, in fact, can sometimes be used by senators secretly and anonymously. For a discussion of the
four different confirmation environments judicial confirmations may face, see Steigerwalt 2004c.
Convention