Contemporary views of the federal judicial appointment process are grounded in themes of obstruction and gridlock. Within this environment, interest groups find fertile ground to target, and sometimes successfully oppose, judicial nominees that once automatically moved through the appointment process and ended in confirmation. While interest group involvement and influence is an accepted fact, much less is known about the efficacy of these groups in carrying out their objective of correctly identifying ideological outlier nominees. This article asks the question: Do interest groups correctly identify and target nominees who are ideological outliers? The article implements a research design that evaluates whether those nominees opposed by interest groups are substantively different than arguably similar but unopposed nominees. The article adopts alternative theories of interest group motivations within the screening role: 1) policy promotion, and 2) group maintenance. Using matched-pair cohorts from the population of Clinton and W. Bush Administration appointments to the United States Courts of Appeals the article compares the dissenting behavior of the matched pairs. The expectation is that, if interest groups are correctly opposing outlier nominees, those who are confirmed despite opposition, should demonstrate outlier behavior in decision making, particularly in their dissenting behavior. Do opposing interest groups accurately identify the most ideologically extreme nominees? The answer is a discernible no. We conclude that there are no substantive differences between the dissenting behavior of targeted and untargeted nominees. Perhaps more interesting, the true relationship might actually be reversed, and controversial nominees are less likely to dissent (and to dissent in salient policy issue areas), than similar non-controversial nominees. These findings call into question the function of interest groups in the confirmation process. The assumption is that these groups are identifying ideological outliers and taking steps to prevent those nominees from being confirmed. This article undermines that thesis and proposes that groups actually target nominees in a way that best serves to increase the membership and financial well-being of the group instead.
28 S. Cal. Interdisc. L.J. 71 (2019).