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Boston University OpenBU Theses & Dissertations Boston University Theses & Dissertations 2016 A woman s place is in the House, the Senate, just not the Judiciary? An empirical analysis
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Boston University OpenBU Theses & Dissertations Boston University Theses & Dissertations 2016 A woman s place is in the House, the Senate, just not the Judiciary? An empirical analysis of the relationship between a nominee s gender and the Senate confirmation process Morel, Melissa Nicole Boston University BOSTON UNIVERSITY GRADUATE SCHOOL OF ARTS AND SCIENCES Thesis A WOMAN S PLACE IS IN THE HOUSE, THE SENATE, JUST NOT THE JUDICIARY? AN EMPIRICAL ANALYSIS OF THE RELATIONSHIP BETWEEN A NOMINEE S GENDER AND THE SENATE CONFIRMATION PROCESS by MELISSA NICOLE MOREL B.A., Boston University, 2016 Submitted in partial fulfillment of the requirements for the degree of Master of Arts 2016 2016 MELISSA NICOLE MOREL All rights reserved Approved by First Reader Douglas Kriner, Ph.D. Associate Professor of Political Science Second Reader Dino P. Christenson, Ph.D. Associate Professor of Political Science ACKNOWLEDGMENTS Thank you to my family, friends, colleagues and advisor, Douglas Kriner. Your endless support has truly been invaluable. iv A WOMAN S PLACE IS IN THE HOUSE, THE SENATE, JUST NOT THE JUDICIARY? AN EMPIRICAL ANALYSIS OF THE RELATIONSHIP BETWEEN A NOMINEE S GENDER AND THE SENATE CONFIRMATION PROCESS MELISSA NICOLE MOREL Boston University Graduate School of Arts and Sciences, 2016 Major Professor: Douglas Kriner, Associate Professor of Political Science ABSTRACT A rampant supposition exists that the judicial nominations of females are less successful due to the nominee s gender (Martinek 2002). It is thus paramount to further investigate empirically whether individual nominee characteristics, such as gender, inhibit the nominee s possibility of obtaining Senate confirmation. I empirically explore this conjecture in two distinct ways. First, I employ a difference in means test to determine whether women are confirmed to the District Court at a lower rate, on average, than are men. Subsequently, I test the hypothesis using a logistic regression that examines the influence of gender and the interaction of gender and race on the likelihood of confirmation, while controlling for other factors. Aiming to contribute to previous scholarship by providing an updated empirical analysis, I offer an update to Wendy Martinek s original analysis of judicial confirmations by using the Lower Federal Court Confirmation Database to examine whether the influences of gender, race and their interaction on confirmation dynamics vary by partisan control. Having found the effect that nonwhite women are less likely to be confirmed by a GOP Senate than white males, I v examine whether gender and race are the key factors or whether the relationship may instead be driven by ideology. Despite popular belief, the analysis of the data is not supportive of an extensive gender gap and undermines the claim that gender alone is an imperative factor inhibiting women from obtaining a successful confirmation. However, the empirical results are supportive of the hypothesis that racial minority females are less likely to be confirmed by a GOP controlled Senate than their white female and male counterparts. vi TABLE OF CONTENTS ACKNOWLEDGMENTS... iv ABSTRACT... v TABLE OF CONTENTS... vii LIST OF TABLES... ix LIST OF FIGURES... x LIST OF ABBREVIATIONS... xi INTRODUCTION... 1 AN ADVERSARIAL RELATIONSHIP: THE PRESIDENT AND THE SENATE... 3 SEXISM IN THE JUDICIARY... 6 LITERATURE ON NOMINATIONS TO THE FEDERAL BENCH... 9 PRELIMINARY ANALYSIS: DIFFERENCE IN MEANS EMPIRICAL HYPOTHESES DATA AND METHODOLOGY RESULTS DISCUSSION CONCLUSION BIBLIOGRAPHY vii CURRICULUM VITAE viii LIST OF TABLES Table 1: Success of Nominations to Lower Federal Court, Table 2: Difference in Confirmation Rates to District Courts By Gender Table 3: Difference in Confirmation Rates to District Courts by Gender and Race Table 4: Summary of Hypotheses & Variables Table 5: Factors Influencing Likelihood of Confirmation by Partisan Control of Senate 29 Table 6: Factors Influencing Confirmation Controlling for Nominee Ideology ix LIST OF FIGURES Figure 1: Predicted Probability of Confirmation During GOP Controlled Senate Figure 2: Predicted Probability of Confirmation During Democrat Controlled Senate Figure 3: Predicted Probability of Confirmation During GOP Controlled Senate & Controlling for Ideology x LIST OF ABBREVIATIONS GOP... Grand Old Party H1...Hypothesis 1 H2...Hypothesis 2 H3...Hypothesis 3 JCS... Judicial Common Space xi 1 INTRODUCTION Loretta Lynch s recent confirmation process to become the second female Attorney General of the United States can be characterized as acrimonious, laborious, and historic. Having previously served as the United States Attorney for the Eastern District of New York, an appointment confirmed by the U.S. Senate, she appeared to be a foreseeable choice to replace acting Attorney General Eric Holder. However, Loretta Lynch s Senate confirmation process was longer than that of any nominee in the past thirty years 1. As pointed out by President Obama, Lynch s nomination was stalled for 161 days, longer than the previous seven Attorney General nominees combined 2. Presently, Loretta Lynch serves as the first African American female U.S. Attorney General, a position greatly coveted by brilliant male and female litigators alike. During his two terms, President Obama has nominated more diverse nominees to federal courts than any of his predecessors, but the nominees are not getting confirmed with the same kind of successes 3. Caroline Fredrickson, director of the American Constitution Society, says, 4 For women and minorities, it's just been a bigger hill to climb before they actually get a vote. The fact that Loretta Lynch is not the first woman to serve as a federal judge or Attorney General is conducive to the idea that women are not overtly discriminated against and barred from claiming prestigious positions requiring Senate confirmation simply because they are women. However, with court diversification being 1 President Barack Obama nominated Loretta Lynch on November 8th, She was confirmed by the Senate Judiciary Committee on February 26, 2015 but not confirmed by 2 Louis Jacobson, Is Loretta Lynch Nomination Delayed Longer than 7 Other Attorneys General Combined? , Politifact, Carrie Johnson, Obama Gets High Marks for Diversifying the Bench. NPR, Johnson, Obama Gets High Marks for Diversifying the Bench. 2 regarded as a high priority issue during the current Obama administration, it is paramount to further investigate whether individual nominee characteristics, such as gender, race, and the interaction of these two factors, inhibit the success of the nominee s Senate confirmation. Despite not being a nominee to a lower federal bench judgeship, Loretta Lynch is the perfect example of a superbly qualified nominee facing animosity from the Senate to the point it could have cost her the nomination. Whether because she was a female or because she was a racial minority female, Loretta Lynch s struggle to secure a well-deserved confirmation by the Senate is something no woman should have to experience because of her gender and race, factors that have nothing to do with her qualifications for office. The purpose of this thesis is to understand the arduous process that is Senatorial confirmation for judicial appointments and the factors driving variation in success of the confirmation. Specifically, it aims to contribute to previous scholarship by providing an updated empirical analysis of the relationship between a nominee s gender and confirmation success as the outcome. Building on previous literature and empirical research, the primary objective is to identify the nuances of [one of the] controversies that has dominated public discourse with regard to Congress and its confirmation responsibilities: the perception of differential treatment of female and minority nominees. 5 This research will empirically explore how factors such as race, ideology, 5 Wendy L. Martinek, Mark Kemper, and Steven Van Winkle. To Advise and Consent: The Senate and Lowe Federal Court Nominations. , The Journal of Politics 64.2 (2002): 3 and judicial qualifications are related to gender and whether they drive and explain unsuccessful Senate confirmations for female nominees. AN ADVERSARIAL RELATIONSHIP: THE PRESIDENT AND THE SENATE The strife between the President and Congress to impact future judicial outcomes via judicial nominees and the relative power each actor holds throughout the process are complexities worth discussing. The Constitution of the United States, specifically Article II Section 2 6, is particularly elusive about the President s appointment power of judicial nominees, the magnitude of the Senate s role in nominee confirmation and the required qualifications for the judicial nominees themselves. While the President has the power to draft his short list of desired nominees for particular courts, the Senate s role in the confirmation process is textually described as solely encompassing their contribution of advice and consent with no specific delineation of what such a responsibility entail. Surely, each actor s role in the nomination and confirmation stages of the judicial appointment process is only vaguely addressed in the Constitution, with much room for interpretation and manipulation. As a result of the Senate s authority to participate in the confirmation process originating in the most legitimate text of the Nation, the role of the Senate in confirmations has in actuality been determined by the actions of Senators themselves (Lambert 2012; Goldman 2003; Binder Maltzman 2002). Early on, Congress asserted its right to independently evaluate judicial nominees qualifications and has since continued 6 Constitution of the United States Official, National Archives and Records Administration. 4 to do so following its own criteria. The Legislative branch has been able to substantially partake in the assessment of competency and ideological stance of candidates as much as, if not more than, the Executive branch. 7 Because the Senate's early practices evince a historical tradition of it as an active and political participant in confirmations 8, Presidents must be able to anticipate which nominees will incur heightened political costs during the Senate confirmation process and adjust their choices accordingly (Chang 2001; Nixon 2004). Whereas presidents can put in place like-minded individuals eager to move policy implementation in their preferred directions through the power of appointments (Moe 1985; Cameron, Cover and Segal 1998; Krehbiel 1998), Senators in the Judiciary Committee who oppose the president attempt to play defense to the best of their ability. Senators during the confirmation process are generally discussed as a homogenous group. However, not only do Senators seek to confirm nominees who share their views of the law vis-à-vis politics, but they are not reticent when it comes to delaying the confirmation process of candidates that do not match their ideological background (Cameron, Cover and 1998; Krutz, Fleisher, and Bond 1998; O Scannlain 2003; Asmussen 2011). Sheldon Goldman introduces an index of obstruction and delay 9 and suggests both parties, relying on an ideological justification, are responsible for the obstruction 7 Jeff Yates and William Gillespie, Supreme Court Power Play: Assessing the Appropriate Role of the Senate in the Confirmation Process., Wash. & Lee L. Review Vol. 58 (2001), Yates and Gillespie, Supreme Court Power Play. 9 Sheldon Goldman, Assessing the Senate judicial conformation process: The Index of 5 and delay during their periods of control in the Senate. The problem of such high levels of obstruction and delay in turn are to be understood as procedural given that Senators from the Republican Party and Democratic Party alike have engaged and continue to engage in manipulating the duration of nominee confirmations. In this spatial world fueled by ideological conflict, Congress tries to prevent the President from stacking the court with justices who will move policy too far from its preferences. If this school of thought is correct and both parties are responsible for obstruction to defend their ideology, then it shouldn t matter whether the Democrats or the Republicans control the Senate. If ideological conflict, alone, drives variation in confirmation duration and success, then we would not expect to observe any differences based on race or gender after controlling for ideological differences. Due to the fact that Senators legitimately can and do intervene in the confirmation process of judicial nominees as vastly or as frivolously as they themselves deem (Yates and Gillespie 2001; Weingast and Moran 1983; O Scannlain 2003; Goldman 2003; Binder Maltzman 2002), it is important to differentiate between the implications of an assertive Senate and those of a deferential one. Under the deferential view, Senators do not give weight to the ideological foundation of the nominees so long as they fall within a broad mainstream 10. In essence, deferential Senators are expected to confirm nominees that display exceptional qualifications and sound character and only vote against a nominee if an extraordinary circumstance presents itself. This deferential view of Obstruction and Delay, Judicature Vol. 86, No. 5 (March-April 2003), Grayson Lambert, The Real Debate over the Senate s Role in the confirmation Process. Duke Law Journal Vol. 61 (2012), 6 Senators supports the theory that duration of Senate confirmations varies depending on individual nominee characteristics and institutional factors because, the deference of some Senators allows other assertive Senators to accumulate the majority needed for the confirmation of a nominee (Asmussen 2011; Lambert 2012). Following the assertive view, Senators are primarily concerned with the ideological preferences of the nominee in question. The Senators interpretation of the nominee s ideological views is a product of their justification about the relationship between politics and the law 11. Confirmation delays for judicial nominees are more probable when assertive Senators disagree with the confirmation of a nominee whose probability to rely on their ideological foundations more than the law appears to be heightened. As was the case with Supreme Court nominee Robert Bork, if nominees appear to be too ideological, then assertive Senators who believe politics are a foundation for interpretation of the law will attempt to delay and completely block the nomination 12. SEXISM IN THE JUDICIARY Legitimizing inherent differences as normal reduces the very real oppressive power of sexism into some kind of gender misunderstanding - Carol Gilligan Knowingly or unknowingly in many contexts, women as a collective group have historically experienced sexism 13. In the context of appointment confirmations, sexism is and has been a significant constraint for women (Nixon and Goss 2001; Hartley 2001; 11 Lambert, The Real Debate over the Senate s Role in the confirmation Process., Ibid. 13 Sexism defined as prejudice or discrimination based on sex and behavior, conditions, or attitudes that foster stereotypes of social roles based on sex (Merriam-Webster 2015). 7 Bell 2002; O Connor Ives 2006) particularly because it is an intrinsic part of the judiciary system and masculine hegemony is self-perpetuating in the confirmation process 14. Kathleen O Connor Ives delineates exactly how the existing Senate confirmation process disadvantages female nominees: While the [confirmation] process on its face does not preclude a spectrum of nominees in terms of gender, it is vulnerable to basic institutional bias considering that the most influential players are overwhelmingly male. It can be inferred that although women are being treated equally during the nomination hearings, they are being treated differently long before the hearings take place. Therefore, gender imbalance is not a question of discrimination in the hearings, but of women s omission from the sociopolitical network that leads to the hearings. As a result, formal equality will not remedy the problem, because formal equality is based on the premise that women must act like men. 15 Despite being a compelling solution, simply confirming more women to the Judiciary once they have been nominated does not remedy the disadvantage women face when wanting to be nominated in the first place (O Connor Ives 2006; Brittain 2009; Torres- Spelliscy 2009; Tobias 2010). Women miss out on a very important conduit to appointments and judicial nominations: personal connections to political power 16, and once they do obtain nominations they face the additional burden of distinguishing themselves from ineffectual women 17. Of course it is pivotal that women are more 14 Kathleen O Connor, Out of the Loop: Female Federal District Court Candidates Disadvantaged by a Nomination Process Imbued with Favoritism, In Out of the Loop: Female Federal District Court Candidates Disadvantaged by a Nomination Process Imbued with Favoritism, Kathleen O Connor Ives tests whether women have dissimilar experiences from men while getting confirmed by the Senate. She compared hearing transcripts of twenty-five male and twenty-five female federal District Court nominees in search of differential treatment between men and women nominees. 16 O Connor, Out of the Loop. 17 Catherine Herr Van Nostrand, Catherine Herr. Gender-Responsible Leadership: Detecting Bias, Implementing Interventions (1993). 8 represented in the Judiciary, the Senate, and the Senate Judiciary Committee; yet, the disadvantages women face are also deeply rooted in society. Georgia Duerst-Lahti and Rita Mae Kelly (1995), in Gender Power, Leadership and Governance, effectively trace the way men and women s relations are marked in society by the power attributed to their gender. One important but largely invisible by-product of men s domination of institutional power has been their ability to allocate society values and resources through a self-justifying ideology. Men s position atop social institutions has enabled them to structure institutions, create laws, legitimize particular knowledge, establish moral codes, and shape culture in ways that perpetuate their power over women. Masculine assumptions underpin the norms that become normal in social relations, so when women enter and act within the realm of leadership and governance, they do so within ideological terms of masculine norms. The discussion of the aforementioned literature on the Senate confirmation process, sexism in the Judiciary and women s disadvantages in the sphere of government and leadership has set the stage from which this paper aims to build upon. It has concisely outlined Senators motives for delaying a nominee s confirmation process, the concealed sexism women experience outside the of the confirmation hearings themselves, and the power men derive from their gender in society. This literature suggests that failure and delays in confirmation of female nominees is not just due to ideological conflict and differences. Rather, gender will matter independent of ideology. The literature suggests that any observed bias against women in the judicial confirmation process would not simply be a function of ideological conflict and differences. 9 LITERATURE ON NOMINATIONS TO THE FEDERAL BENCH Prior work regarding the Senate confirmation process for judicial nominees has largely been a combination of non-empirical analyses of the evolving process with case studies (Chase 1972; McFeeley 1987; Allison 1996; Barrow, Zuk, and Gryski 1996;; Hartley and Holmes 1997), such as the nomination of Robert Bork or the Clinton nominations to the Supreme Court 18, and empirical analyses of larger comprehensive samples. However, imperative deficiencies in previous studies that must be addressed are the dismissal of District Courts as inconsequential, the denigration of confirmation outco
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