Schoenherr-Lane-Armaly-2020.pdf

The Purpose of Senatorial Grandstanding during Supreme Court Conﬁrmation Hearings JESSICA A. SCHOENHERR, University of South Carolina ELIZABETH A. LANE, Louisiana State University MILES T. ARMALY, University of Mississippi ABSTRACT US Supreme Court conﬁrmation hearings provide senators with an opportunity to engage a potential jus- tice on a nationwide stage. Senators probe for information about future behavior on the bench. Nominees work through the questions, oscillating between forthcoming and vague responses. Such behavior encour- ages popular narratives that characterize this intricate dance as a “vapid and hollow charade.” We chal- lenge this wisdom and argue that senators use these hearings to provide meaningful representation to their constituents while simultaneously supporting copartisan efforts regarding the nominee. We examine the exchanges in 185 senator-nominee pairings that span nearly 30 years of conﬁrmation hearings. Our results show that senators from both parties increase their question-asking activity during divided govern- ment, when conﬁrmation success is more dubious. Senators from the president’s party ask fewer ques- tions when their constituents support the nominee, however, suggesting that popular support can atten- uate this general effect for senators expecting a successful conﬁrmation. Journalists, scholars, and members of the mass public frequently ask whether Supreme Court nomination hearings provide any public value. During Neil Gorsuch’s 2017 con- ﬁrmation hearings, for example, a Supreme Court reporter asked, “Were the Gorsuch Originally prepared for the 2017 Annual Meeting of the Southern Political Science Association, New Orleans, Louisiana, January 12–15, 2017. We thank Donald Campbell, Marcus Hendershot, Amy Steigerwalt, and Alicia Uribe-McGuire for their helpful comments. We also thank Dion Farganis, Ryan Owens, and Justin Wedeking for sharing their data on conﬁrmation hearings, as well as Jonathan Kastellec, Jeffrey Lax, Michael Malecki, and Justin Phillips for making their public opinion data and code available via Harvard Dataverse. Finally, we thank Ryan Black, Marty Jordan, Ian Ostrander, and Corwin Smidt for their commentary on several iterations of this project and Emma Brooks, Leopold Ditz, and Lola Kurniawan for their support. Contact the corresponding author, Jessica A. Schoenherr, at [email protected]. Journal of Law and Courts (Fall 2020) © 2020 by the Law and Courts Organized Section of the American Political Science Association. All rights reserved. 2164-6570/2020/0802-0007$10.00. Electronically published August 21, 2020. 334 | JOURNAL OF LAW AND COURTS | FA L L 2 0 2 0 hearings as pointless as they seemed?” (Lithwick 2017). Similarly, a constitutional law scholar watching John Roberts’s hearings remarked, “These hearings today don’t provide any real substance. It just gives Senators a chance to grandstand, and nominees take a ‘less is more’ approach in answering questions” (quoted in Competitive Enterprise Institute 2005). Even Elena Kagan (1995) famously called conﬁrmation hearings a “vapid and hollow charade” more than 10 years before she found herself answering those questions as a nom- inee. We disagree with assessments like these. Instead, we contend that members of the Sen- ate Judiciary Committee use the hearings to engage in constituent maintenance while also fulﬁlling their constitutional duties to advise and consent on the nominees. The Senate con- ﬁrms most of the president’s nominees to the Supreme Court (Nemacheck 2008), meaning senators opposed to conﬁrmation rarely secure a policy victory for constituents when it comes to stafﬁng the Court. They can, however, still represent their constituents’ interests by questioning the nominee in a manner congruent with voter preferences. To examine this facet of senatorial behavior, we systematically analyze senators’ question- asking behavior in 11 Supreme Court conﬁrmation hearings that occurred between 1981 (Sandra Day O’Connor) and 2010 (Elena Kagan). Then, utilizing new data, we consider senator behavior during the Neil Gorsuch and Brett Kavanaugh hearings. We ﬁnd that senatorial power dynamics and constituent preferences inﬂuence senators’ behavior during the hearings. Speciﬁcally, our results suggest that senators modify their level of engage- ment with the nominee as the government shifts from uniﬁed to divided. Nominees pre- sented during uniﬁed government experience a coronation. In-party senators (i.e., those in the nominating president’s party) ask only enough questions to showcase the nominee’s qualiﬁcations and reinforce the president’s narrative that this nominee is the best nominee, while out-party senators engage in more intense conversations with the nominee as they seek to mitigate the damage caused by the inevitable successful conﬁrmation. Under di- vided government, however, the out-party can threaten a nomination, and both parties consequently partake in more contentious hearings with signiﬁcantly more exchanges. We also show that public opinion in a senator’s state can temper this behavior; in-party senators from states that support the nominee draw less attention to themselves and engage with the nominee less frequently, regardless of the institutional setup. Our ﬁndings make three signiﬁcant contributions. First, we expand the literature on constituent maintenance by considering Supreme Court conﬁrmation hearings. Electoral considerations, like constituent needs, motivate congressional representatives’ behavior (Mayhew 1974; Fenno 1978; Grimmer 2013; Jacobson and Carson 2016). When policy outcomes fail to placate constituents, congressional representatives pursue alternative means of pleasing them. Typically, extant literature focuses on how senators mitigate con- stituent anger over legislative policy using some part of the legislative process (Bickers and Stein 1996; Hill and Hurley 2002; Madonna 2011). Supreme Court conﬁrmation votes are not like other legislative votes, however, as many of the common means of constituent molliﬁcation are unavailable, and positive outcomes are often preordained (Krutz, Flei- sher, and Bond 1998). We show that the senators on the Judiciary Committee, at least, Senatorial Grandstanding | 335 can attempt to use the hearings’ trappings to manage constituent anger toward a displeas- ing nominee and her actions once on the Court. Second, our ﬁndings suggest that studying question-asking behavior is crucial to un- derstanding the conﬁrmation process. Farganis and Wedeking (2014) show that nominees are reasonably forthcoming in their responses despite the myth that nominees refuse to answer senators’ questions. They also point out that senators voice frustration about ob- fuscatory responses to their questions but do not consider their frustration when voting on that nominee’s conﬁrmation. We suggest this disconnect occurs because the act of engag- ing with the nominee is more important for a senator’s reputation with constituents than extracting a forthcoming answer from a nominee. In fact, a vague response can beneﬁt a senator, providing him with another opportunity to engage with the nominee as he at- tempts to secure an answer. Senators can look demanding or friendly when questioning a nominee, and their question-asking behavior can shape this perception. Essentially, con- ﬁrmation hearings unfold the way they do because senators want them to unfold that way. Finally, we argue this behavior may ultimately lead to better representation. Although congressional representatives are generally responsive to public preferences (Wlezien 1995), including on matters pertaining to the Supreme Court (Kastellec, Lax, and Phillips 2010; Collins and Ringhand 2013), senators simply cannot guarantee policy outcomes congru- ent with constituent demands when conﬁrming Supreme Court nominees. They can, however, represent their constituents through actions purposefully tailored toward only their constituents, engaging in what Carey and Shugart (1995, 417) call “cultivat[ing] a personal vote.” For members of the Senate Judiciary Committee, confronting a displeasing nominee means using different techniques to signal constituent representation when they are unable to represent constituents by blocking a nomination. We suggest that senatorial grandstanding during Supreme Court conﬁrmation hearings forces senators, at the very least, to align their rhetorical behavior with constituent needs. S E N ATO R I A L B E H AV I O R A N D M OT I VAT I O N S I N C O N F I R M AT I O N P O L I T I C S Owing to their salience and visibility, senators have historically treated Supreme Court conﬁrmation hearings as a unique type of executive branch nomination. The media, in- terest groups, and the general population pay the most attention to these hearings (Cam- eron, Kastellec, and Park 2013; Collins and Ringhand 2013), and senators have histori- cally behaved as though inaction or disruption of the conﬁrmation process is politically untenable (Chiou and Rothenberg 2014). In fact, the Republicans’ refusal to consider Merrick Garland’s nomination in 2016 and the Democrats’ later decision to use the ﬁl- ibuster during Gorsuch’s 2017 conﬁrmation are the rare exceptions to this general rule and remain controversial decisions precisely because these actions seriously violated sena- torial norms (Berenson 2017; Flegenheimer 2017). Traditionally, however, senators act- ing on a nomination to the Supreme Court tend to avoid the dilatory tactics typical of 336 | JOURNAL OF LAW AND COURTS | FA L L 2 0 2 0 other, less visible, nominations—holds (Howard and Roberts 2015), blue slips (Black, Madonna, and Owens 2014), ﬁlibusters (Binder and Maltzman 2009), or any other proce- dural move intended to delay action on nominees (Bond, Fleisher, and Krutz 2009)—and schedule hearings for the nominees regardless of the political environment surrounding the nomination (Farganis and Wedeking 2014). Because the president selects the nom- inee with an eye toward successful conﬁrmation, the end result of these hearings is almost always a new Supreme Court justice (Krutz et al. 1998; Moraski and Shipan 1999; Nemacheck 2008). The numbers underscore the uniqueness of Supreme Court nomina- tions: between 1993 and 2018, the Senate conﬁrmed 100% of Supreme Court nominees who had a hearing while conﬁrming only about 77% of executive branch nominees (Eilperin 2014), and 94% of the Supreme Court nominees who made it to the Senate ﬂoor in the past century eventually made it to the bench (Heritage Foundation 2017; McMillion and Rutkus 2018). While nominees are effectively ensured a ﬂoor vote and conﬁrmation is essentially as- sured, the nomination and conﬁrmation process remains politicized and contentious. Presidents select more ideologically extreme nominees in the modern era (Cameron et al. 2013), senators are more hostile toward the nominee when they question her (Farganis and Wedeking 2014), and nominee qualiﬁcation for the job, once an important predictor of conﬁrmation, is now a secondary consideration as ideological similarity has grown in importance to senators’ decision-making calculus (Epstein et al. 2006). Partisanship mat- ters as well. Senators who are not in the president’s party are more likely to band together and vote against a nominee in the modern era (Cottrill and Peretti 2013); after all, a con- ﬁrmation (or a successful block) is a policy win for all party members (Smith 2007; Lee 2009). In short, senators put Supreme Court nominees through a difﬁcult and conten- tious process before letting them take their seats. The Senate Judiciary Committee organizes and executes the contentious conﬁrmation hearings for Supreme Court nominees. In theory and practice, members’ collective goal is to provide a service to their colleagues by collecting and dispersing information about the nominee so that senators who are not on the committee can make a knowledgeable deci- sion regarding conﬁrmation (Hamilton 2003; Collins and Ringhand 2016). Senators on the committee ask the nominee about civil liberties, judicial decision making, legal philos- ophy, and previous Court rulings (Farganis and Wedeking 2011; Solberg and Waltenburg 2015), all with an eye toward collecting and sharing basic information. Senators on the committee can also use their investigative power to simultaneously pursue political inter- ests—a desirable pursuit given legislators’ focus on reelection (Mayhew 1974). Senators, individually and as a party, decide which questions to ask, how to ask them, and how hard to push for answers. Consequently, senators can use their information-gathering duties to engage with the nominee in a way that can elevate or devastate her chances of securing conﬁrmation. Short of that, senators can tailor their questions to mirror constituents’ con- cerns. And while the nominees do not always engage with senators’ questions (Farganis Senatorial Grandstanding | 337 and Wedeking 2014), we contend it is the questioning that matters. Even if nominees avoid answering questions, Judiciary Committee members can use the hearings to publicly show constituents that their needs receive consideration and attention. Consider the Judiciary Committee’s 1993 review of Ruth Bader Ginsburg and the Senate’s subsequent 96–3 conﬁrmation vote. As a longtime law professor and experienced federal judge, Ginsburg was decidedly qualiﬁed for the position; her perfect qualiﬁcation rating from Segal and Cover (1989), who rate nominees based on newspaper editorials, underscores her worthiness for the role. She was also politically well placed for conﬁrma- tion, as a Democratic president nominated her and she faced a Democratic Senate. Yet, despite her near guarantee of a successful conﬁrmation, Ginsburg still faced opposition- party haranguing during her hearing. Republican Senator Orrin Hatch, for example, used his time to lambaste Ginsburg about her support for a constitutional right to abortion (US Senate 2016, 269) and her opposition to the death penalty (Andrews 1993), despite hav- ing suggested Ginsburg’s name to President Clinton in the ﬁrst place (Burr 2018). Hatch would ultimately vote to conﬁrm Ginsburg, whom more than 70% of Utahans supported. But before he did, he utilized his time to ask her about what he disliked about her record, rather than underlining what he liked about it, as his Democratic colleagues spent the hearings doing. We believe Hatch did this because he wanted to show Utahans that he would support all of their interests—they might like Ginsburg as a nominee, and he would support that, but he knew they also disagreed with Ginsburg about the legacy of Roe v. Wade (1973), and he stated on record that he represented that interest too. As Hatch’s behavior with Ginsburg highlights, participation in the hearings as a mem- ber of the Judiciary Committee provides beneﬁts that other senators do not have. Across all legislative activities, senators have two avenues through which they can act on constit- uent interests: making policy and engaging with the public in a way that indicates senators know what they should do, even if they cannot produce the desired policy (Grimmer 2013). For the typical senator voting on a nominee, this means casting a vote and later explaining that decision. There is evidence of this policy-making variant of representation during Supreme Court conﬁrmations, as citizens’ support for a nominee’s conﬁrmation increases the probability that their senator will cast a yea vote (Kastellec et al. 2010). Re- garding the rhetorical variant, senators are able to control oratorical narratives by strategi- cally using public speeches to reach constituents (Hill and Hurley 2002). Membership on the Senate Judiciary Committee provides a third avenue for representation, however: en- gaging with a nominee during the hearings in a way pleasing to constituents. Televised conﬁrmation hearings provide senators with a prime opportunity for grandstanding and constituent maintenance. While all senators on the Judiciary Committee can utilize their questioning for constituent maintenance, institutional arrangements (i.e., divided vs. uniﬁed government), political positions within the Senate (a senator’s position in the pres- ident’s party or the opposition party), and constituent support for the nominee should inﬂuence the extent to which different senators do so. 338 | JOURNAL OF LAW AND COURTS | FA L L 2 0 2 0 As members of the party seeking and able to derail a nomination during divided gov- ernment, opposition-party senators use their majority status to instigate contentious con- ﬁrmation hearings. In this situation, these out-party senators have the numbers and political will to block a nomination; that is, they have an opportunity to deliver a policy victory to constituents. Realistically, however, blocking the nominee is nearly impossible. The well-established presumption of conﬁrmation success puts the pressure on the oppo- sition party to prove the nominee’s unworthiness, and, barring a scandal, out-party sen- ators rarely manage to do this (Krutz et al. 1998). We argue that upon losing the ability to represent their constituents through policy, out-party senators turn to rhetorical repre- sentation instead. In this situation, out-party senators seek to mitigate the damage of a conﬁrmed nominee by repeatedly engaging with the nominee, typically about issues im- portant to constituents. Thus, we expect that the out-party senators on the Judiciary Committee should attempt to inundate the nominee with questions during conﬁrma- tion hearings in a divided government. In response to the majority’s interrogation, members of the president’s party combat the out-party onslaught by engaging with the nominee equally as much. Because the pres- ident carefully selects his nominee and then uses his bully pulpit to establish the nominee’s credibility and qualiﬁcations for the position (Moraski and Shipan 1999; Johnson and Roberts 2004; Nemacheck 2008; Gibson and Caldeira 2009), the in-party should merely shepherd the nomination home. They even have a built-in advantage for doing so, as they work with an existing narrative and need only conﬁrm and encourage it. With that said, maintaining a narrative gets more difﬁcult when the opposition party holds a theoretical ability to overturn the nomination and uses that position to tear into that narrative with their interrogation of the nominee. We consequently suggest that during divided govern- ment, in-party senators must ﬁght for the nominee, engaging with her as much as their out-party counterparts do as a way to combat the majority’s grandstanding. Conversely, when the government is uniﬁed and the president’s party controls the Senate as well, the out-party senators are generally forced to watch a nominee’s corona- tion with little ability to stop it. They lack the numbers to overturn the nomination and, short of scandal, have no way to obtain that policy victory. Consequently, we suggest that during uniﬁed government out-party senators again engage in rhetorical represen- tation of their constituents but to a lesser degree when compared to the contentiousness of a divided-government hearing. They will dominate the conversation during these hearings, asking signiﬁcantly more questions than their in-party counterparts, but they do this in order to mitigate the preordained damage that comes with guaranteed policy failure. Out-party senators thus still engage with the nominee with frequency and vigor, but they do so less frequently than they would under divided government. During uniﬁed government, the in-party controls the conﬁrmation and consequently does not respond to the out-party’s questioning. The combination of the president’s nar- rative advantage and majority status in the Senate nearly guarantees victory. In-party sen- ators merely need to reinforce the president’s positive depiction of the nominee, so their Senatorial Grandstanding | 339 engagement with the nominee should be minimal. We suggest that in-party senators un- der uniﬁed government engage with the nominee less than they would during a conten- tious divided government conﬁrmation and less than their out-party counterparts do during a hearing during uniﬁed government. Here, in-party senators allow their out-party counterparts to dominate the proceedings precisely because they have the numbers to win at the end of the process. Table 1 summarizes our expectations for these situations. While institutional arrangements and political positions within the government should drive senators’ approach to questioning the nominee during the conﬁrmation hearings, citizens’ thoughts about the nominee should also inﬂuence senator behavior. Constituents care about who sits on the Court and will punish their senators for voting “the wrong way” on a nomination (Kastellec et al. 2010). Such actions force senators to consider public sup- port for a nominee before casting a vote. The support-building process begins long before the vote, however; on average, the Senate Judiciary Committee has, since 1981, started hearings about 46 days after the president ﬁrst announced the nomination (McMillion and Rutkus 2018), giving citizens time to form initial opinions and interest groups ample time to engage in grassroots lobbying intended to inﬂuence constituents’ opinions about the nominee (Cohen 1998; Caldeira, Hojnacki, and Wright 2000). Citizens have opin- ions about the nominees, and senators have electoral motivations to listen to them. We argue that constituent opinion within a senator’s state can modify some senators’ approach to conﬁrmation hearings. Out-party senators always have an incentive to ques- tion the nominee to the fullest extent possible. At a basic level, out-party senators want to reject a nominee selected by the other party. Their constituents should dislike the nom- inee, a defeat makes their party look good (Smith 2007; Lee 2009), and the next nominee might better reﬂect their own preferences. In such cases, the out-party senator should ag- gressively engage with the nominee to show constituents they are on the same page. But some constituents might like the nominee—after all, people tend to like Supreme Court nominees on a personal level (Gibson and Caldeira 2009). Here, senators can either work to persuade constituents this nominee is not the right nominee or follow Hatch’s example and interrogate a nominee about the parts of her record that constituents will grow to Table 1. Senatorial Motivations and Expectations for Grandstanding Out-Party In-Party Divided Government Chance to block Fight for the nominee Fight for failed nomination Victory likely after ﬁght Highlight issues with record Emphasize party narrative High level of engagement High level of engagement Uniﬁed Government Mitigate damage Guaranteed victory Lack the votes to overturn Have the votes to win Multiple questions Follow party narrative Medium level of engagement Low level of engagement 340 | JOURNAL OF LAW AND COURTS | FA L L 2 0 2 0 despise. Essentially, out-party senators will interrogate the nominee regardless of how much their constituents like her. In-party senators, however, have a reason to change their question-asking behavior when their constituents like the nominee. In this case, the constituents like the nominee, and the conﬁrmed nominee will work to uphold constituents’ interests. These senators are virtually guaranteed a policy win, and they only have to reinforce the president’s narrative to do it. Under divided government, this should mean that in-party senators from high- support states sit back and let the existing narrative do the talking. In-party senators from low-support states can take the spotlight, emphasize the nominee’s credentials, and ﬁght to show how well the nominee will represent constituent interests. Alternatively, when the government is uniﬁed, in-party senators have every incentive to speak as little as possible, although senators from high-support areas perhaps cannot resist taking a victory lap and engaging with the nominee on a few extra questions whose answers have little effect on the nomination itself. Putting our overall argument more simply, we suggest that senators grandstand in order to please constituents and therefore must also consider their audience’s opinion on the nomination before doing so. We consider such possibilities in what follows. DATA A N D M E A S U R E S To examine senatorial behavior during Supreme Court conﬁrmation hearings, we use Farganis and Wedeking’s (2014) data on senator behavior during conﬁrmation hearings. Because we are analyzing the relationship between each senator on the Judiciary Commit- tee and the Supreme Court nominee undergoing the interrogation, our unit of analysis is the senator-nominee dyad. The number of observations for each nomination is equivalent to the number of senators on the Judiciary Committee who engaged with the nominee during that hearing. Senators can appear in multiple dyads, as Senators Grassley, Hatch, Leahy, and Specter do, given that they sat on the Judiciary Committee for all Supreme Court conﬁrmation hearings that occurred between 1981 and 2010. The data cover 11 of the 13 nominations that received a conﬁrmation hearing between O’Connor’s hearing in 1981 and Kagan’s in 2010, resulting in an N of 185.1 The decision to begin with O’Connor is a conscious one on our part. Her hearing is the ﬁrst in the televised era, and as Farganis and Wedeking (2014) show, senators modiﬁed their question-asking behavior when stations began broadcasting the hearings live. Starting with O’Connor also allows us to focus on hearings conducted in a polarized Senate, which began in the late 1970s (McCarty 2014).2 Our decision to stop with Kagan, however, is data driven; as we discuss 1. Our analysis does not include Scalia’s hearings in 1986 or Kennedy’s in 1987 owing to data availability. One of our key independent variables is public support for the nominee in a Judiciary Committee member’s state, but no outlet conducted a national poll with sufﬁcient data on the favor- ability of either of these nominees. Consistent with existing research, we consequently removed them from our analysis (Kastellec et al. 2010). 2. Polarization in the Senate increased linearly and dramatically between O’Connor’s hearings in 1981 and Kagan’s hearings in 2010 (Poole 2012). Even so, the composition of the Senate Judiciary Senatorial Grandstanding | 341 later in the article, we use different data to examine Gorsuch’s hearings in 2017 and Kavanaugh’s in 2018. In choosing our dependent variable, we considered how best to measure a senator’s behavior during the hearings, particularly his engagement with the nominee during ques- tioning. Ideally, we want to measure the intensity of a senator’s questioning of the nom- inee during the hearings. That is, we want to examine how demanding or forceful the sen- ator is when engaging with the nominee, looking for indications that he is using his time to the fullest possible extent as he attempts to secure answers on the nominee’s positions. One way to do this would be to use text analysis methods, particularly sentiment analysis, to analyze a speaker’s behavior, a technique scholars use with increasing frequency (Grim- mer and Stewart 2013). These tools overwhelmingly focus on individual word choices and the frequency with which they get used (e.g., Monroe, Colaresi, and Quinn 2008; Black et al. 2011; Owens and Wedeking 2012). Problematically for the present purposes, how- ever, these tools fail to capture the force with which a senator questions a nominee (see Collins and Ringhand 2013; Farganis and Wedeking 2014). Constituents can see and process the expressions or nonverbal cues of the senators and nominee and hear the tones of voice tied to the exchanges. Given that constituents are likely to consume the hearings at some point (Overby et al. 1994), it is not surprising that senators utilize any strategy avail- able to make their questions memorable, including theatrical ﬂourishes to their speech. Consider, for example, Senator Al Franken’s questioning of Judge Neil Gorsuch in 2017. Democrats on the committee repeatedly asked Gorsuch about his ruling in the so-called Frozen Trucker Case (Shugerman 2017). Franken, the third Democrat to mention the case, used nearly one-third of his time to discuss Gorsuch’s dissent in the case. His tone and hand gestures grew more frustrated and excited with each subsequent exchange de- spite the factual nature of his words as he restated the case facts and outcome (CNN 2017). A dictionary-based text analysis program would likely register little of the intensity and emotion that Franken conveyed as he attempted to extract a satisfying answer from Gorsuch. Accordingly, we turn to other measures to answer our question. We instead use the number of exchanges between the senator and the nominee to ex- amine a senator’s willingness to engage, question, and interrupt a nominee. That is, we use the number of exchanges to measure a senator’s question-asking intensity. While all Judi- ciary Committee members in the modern era ask the nominee questions and use most of their equally allotted time to do so (Farganis and Wedeking 2014), our data suggest that out-party senators typically engage with the nominee more frequently than in-party sen- ators do, despite the out-party having fewer seats on the committee (see also Farganis and Committee remained reasonably stable over this time period, suggesting that perhaps the committee did not polarize as quickly as the Senate did. We considered the possibility that Senate polarization over time could inﬂuence senators’ behavior during the conﬁrmation hearings and even controlled for it us- ing several different operationalizations of a time or polarization variable (see appendix tables 3 and 4; appendix available online). Ultimately, controlling for time or polarization did not add any explanatory power to our model of senator question-asking behavior, so we did not include that in our analysis. 342 | JOURNAL OF LAW AND COURTS | FA L L 2 0 2 0 Wedeking 2011). Additionally, because senators utilize the prehearing nominee question- naire to gather basic information about the nominee, Farganis and Wedeking (2014, 26) suggest senators have the space to ask “more difﬁcult and probing questions” during the hearings. Given that these more difﬁcult questions are also the questions the nominees are less likely to answer (Collins and Ringhand 2013; Farganis and Wedeking 2014), the questioning senator would presumably respond to evasion with force, attempting to ex- tract a constituent-pleasing answer from the nominee. This would result in more exchanges. Senator Franken’s hostile questioning provides face validity to this measure. To turn again to his questions about the Frozen Trucker Case, anyone who watched the hearing saw Franken’s questioning turn into a rapid-ﬁre back-and-forth with Gorsuch, with the senator volleying with the nominee ﬁve times in less than 30 seconds as he pushed Gorsuch to defend his position (CNN 2017). He packed in questions to get his point across. Beyond anecdotes and conjecture, however, we also used content analysis to verify the validity of using this measure. We hand-coded a random sample of 277 senator ques- tions from the uncontroversial hearings for David Souter and Stephen Breyer. We asked research assistants to code the tone of each question as positive (softballs or questions in the nominee’s area of expertise), neutral (fact-based questions about past Court precedent or the nominee herself ), or hostile (questions that demand responses regarding problematic past rulings or a poorly answered question). The data reveal that out-party senators ask more hostile questions than their in-party counterparts ( p < :05, one-tailed test). That is, our content analysis veriﬁes that the senators who ask the most questions are also asking intense, probing questions. To operationalize our dependent variable, we adopt Farganis and Wedeking’s (2011, 528) deﬁnition of an exchange, which is the senator’s initial statement or question and the nominee’s response to it. This question-and-answer unit includes any back-and-forth that involves the senator and nominee talking over each other or speaking at the same time as part of a single exchange (Farganis and Wedeking 2014, 32). Figure 1 displays a set of exchanges between Senator Ted Kennedy and then-judge Samuel Alito during Alito’s 2006 conﬁrmation hearing. This example is recorded as two separate exchanges. In the ﬁrst exchange, Kennedy asks Alito about his job application to the Department of Justice, and Alito begins to answer before he gets interrupted, after which he answers the question. Notice that the cross-talk is part of the exchange and does not indicate the beginning of a new exchange, as Alito did not complete his answer before Kennedy interrupted him. The second exchange is Kennedy asking for clariﬁcation about Alito’s position and Alito re- sponding that his word choice on the job application was “very misleading and incorrect.”3 On average, senators have 38 of these exchanges during a hearing. The vast majority span between 11 and 68 exchanges (10th–90th percentile).4 As we pointed out earlier, 3. We include an example of a more complex exchange in the appendix. 4. These descriptive statistics are calculated from each senator’s conversation with a nominee during the allotted interrogation period. This means that additional exchanges with the nominee by the chair Senatorial Grandstanding | 343 Figure 1. Two separate exchanges between Senator Ted Kennedy and then-judge Samuel Alito during his 2006 confirmation hearing. in-party senators converse with the nominee less than their out-party counterparts, aver- aging 30 exchanges compared to the out-party’s 48 ( p < :01, two-tailed test). As we expect that institutional arrangements inﬂuence how partisan senators approach the nomination proceedings, we consider two dichotomous variables: the presence of di- vided government and the senator’s status as a member of the president’s party. Because our theory suggests that the combination of these variables is more substantively interest- ing than each individually, we place each senator into one of four mutually exclusive cat- egories: (1) in-party member under divided government, (2) out-party member under di- vided government, (3) in-party member under uniﬁed government, and (4) out-party member under uniﬁed government. This arrangement allows us to examine the engage- ment level of each situation separately. To measure representational concerns, our other area of interest, we estimate constit- uency support for the nominee. State-level estimates of public opinion toward a Supreme Court nominee are difﬁcult to obtain, as researchers typically cannot use disaggregation to get valid state-level measures from nationally representative surveys that ask about Su- preme Court nominees (Kastellec et al. 2010, 2015). Inventively, Kastellec et al. (2010, 771) employed multilevel regression and poststratiﬁcation on a combination of national or ranking members of the Senate Judiciary Committee (e.g., clarifying rules, asking the audience to quiet down, or even cracking the occasional joke) do not inﬂuence the data. 344 | JOURNAL OF LAW AND COURTS | FA L L 2 0 2 0 polls with 500 or more observations, geographic information, and demographic data to obtain state-level estimates of support for a nominee. Their estimates reﬂect public opin- ion at the time of the conﬁrmation vote; however, we need estimates of public opinion at the time of the hearings (i.e., before the vote). We thus utilize a variation of their measure to produce state-level estimates of support for the nominee before the senators began ques- tioning the nominee in the hearings.5 No outlet conducted a national poll with sufﬁcient data on the favorability of Scalia or Kennedy, so we omit their hearings from our analysis, but we are able to use Kastellec et al.’s (2015) data to include estimates of constituent sup- port for Kagan’s 2010 nomination. Additionally, because we believe institutional arrange- ments and representational concerns concurrently inﬂuence senator behavior, we include multiplicative terms for each variant of institutional arrangement and public opinion. Finally, we also include ﬁve control variables for factors that are known to inﬂuence senators’ behavior during the conﬁrmation process. First, because senators approaching reelection in the near future could be grandstanding more than colleagues with more distant electoral concerns, we control for the time to each senator’s next election, measured in years.6 Second, given the importance of ideological congruence for conﬁrmation voting (Ep- stein et al. 2006), we expect that senators who are ideologically distant from the nominee will be more hostile toward her, and we therefore control for the ideological distance be- tween the senator and the nominee. For this measure, we use the squared Euclidean dis- tance between a senator and the nominee ideal points in Common Space (Farganis and Wedeking 2014, 64), with larger values indicating greater ideological distances. Third, we use Segal and Cover (1989) scores to control for the nominee’s qualiﬁcation for the job, as a nominee’s qualiﬁcations to be a Supreme Court justice inﬂuence the like- lihood of conﬁrmation (Epstein et al. 2006). Segal and Cover analyze preconﬁrmation newspaper editorials about the nominee to create this qualiﬁcation score, which ranges from 0 to 1. Of our 11 justices, Justice Rehnquist is considered the least qualiﬁed (Segal- Cover score of 0.4), while Justices Ginsburg and O’Connor are the most qualiﬁed (Segal- Cover scores of 1.0). 5. Estimation details are provided in the appendix. 6. Alternatively, when considering electoral factors that could inﬂuence a senator’s behavior, we could use the senator’s status as a lame duck, or we could use a measure of the senator’s political ambi- tion. After examining the data, we decided against controlling for either one in the model. Out of the 43 senators included in our analysis, only 5 of them were lame ducks—senators who were still in ofﬁce but not running for reelection—when they voted on a nominee. This small sample leaves little variance to analyze, so we do not control for lame duck status. Additionally, very few members of the committee in this time period mounted a campaign for president or left the committee to join the Senate leader- ship (Senators Biden, Hatch, and Specter were the most notable presidential hopefuls between 1981 and 2010, while Senator Schumer eventually became the Senate minority leader after his stint on the Judiciary Committee). In fact, the data show that most senators on the Judiciary Committee serve for long periods of time, with 14 out of the 43 senators examined here serving on the Judiciary Committee for 6 or more of the 11 nominations we examine. This suggests that while senators on the Judiciary Committee can be ambitious, their ambitions lie somewhere beyond moving up the political ladder. We consequently do not include a measure of ambition in our model either. Senatorial Grandstanding | 345 Fourth, we control for interest group opposition to the nominee, measured as the per- centage of total interest groups that opposed the nomination via written or oral testimony (Epstein et al. 2007; Farganis and Wedeking 2014). Interest groups are increasingly in- volved in the conﬁrmation process (Cameron et al. 2013). They actively seek to draw at- tention to a nomination (Bell 2002; Scherer, Bartels, and Steigerwalt 2008; Steigerwalt 2010) and inﬂuence senators’ approaches toward a nomination (Caldeira and Wright 1998; Caldeira et al. 2000), and their support or opposition can inﬂuence a Judiciary Committee member’s decision to send a nominee to the Senate ﬂoor for a full vote (Farganis and Wedeking 2014). Crucially, we focus on the level of interest group opposition because such opposition is most salient before a nomination makes it to the ﬂoor (Krutz et al. 1998).7 Finally, we include a dichotomous control variable for whether or not a member of the Judiciary Committee was an attorney before joining the Senate. Research suggests that “lawyer-legislators” exhibit different behavior than their nonlawyer counterparts in the Senate (Miller 1995). Additionally, attorneys should have experience with questioning people about their past behavior, which should give these senators an experiential advan- tage before Supreme Court nominees. Essentially, former attorneys should be better at engaging with nominees. We expect that senators who were attorneys will ask the nom- inee more questions than their nonattorney counterparts.8 M E T H O D O L O G Y A N D E M P I R I C A L R E S U LT S Our dependent variable, the number of exchanges between the senator and the nominee, is a count. Owing to overdispersion of the dependent variable (i.e., the conditional mean is not equal to the conditional variance), we employ a negative binomial regression (Long 1997). Because senator-nominee exchanges are nested within conﬁrmation hearings, multi- level modeling techniques could be appropriate here, but after careful consideration of the structure of our data and with the aid of statistical tests, we determined they are not.9 We instead estimated our model with standard errors clustered by nomination. 7. Using a proportion for this variable also allows us to deal with a partisan problem: interest groups are signiﬁcantly more likely to engage in nominations made by Republican presidents. On average, eight interest groups participated in each hearing for the four Clinton and Obama nominees, while almost 45 groups participated in each of the hearings for the seven Reagan, George H. W. Bush, and George W. Bush nominees. This difference is statistically signiﬁcant. Additionally, the correlation between the total number of interest groups and the nominating president’s party is 0.7346. The correlation between the percentage of total interest groups opposed to the nomination and the president’s party is 0.3302. 8. We also considered whether a senator’s previous experience as a prosecutor inﬂuences his question- asking behavior. We found that the act of being a practicing attorney, period, was more important; senators who worked as prosecutors did not ask more questions than senators who also practiced but were not prosecutors. 9. As Gelman and Hill (2007) explain, multilevel modeling requires group-level variation; i.e., in order to obtain accurate estimates of the group-level variation, the data must vary sufﬁciently across these groups. While our group-level data vary, we may simply have too few nominations in our data to place much certainty in our estimates. Eleven groups is already a small number, and many of our groups share similar characteristics, with four pairings of nominees facing the same or nearly the same Senates 346 | JOURNAL OF LAW AND COURTS | FA L L 2 0 2 0 Table 2. Negative Binomial Regression Results, Senator-Nominee Exchanges Coefﬁcient SE In-party divided government 2.272***.649 Out-party divided government.697.431 In-party uniﬁed government 21.173***.186 Public opinion 2.005.003 Public opinion in-party divided government 2.0231*.009 Public opinion out-party divided government 2.003.007 Public opinion in-party uniﬁed government.011***.003 Time to next election 2.031.036 Ideological distance.523***.145 Qualiﬁcations 2.261.174 Percentage of interest groups in opposition.957***.145 Senator former attorney.459***.081 Constant 3.210***.256 Observations 185 Akaike information criterion 1,532.1 Bayesian information criterion 1,564.3 Log likelihood 2756.1 * p <.05. ** p <.01. *** p <.001. The results of the negative binomial regression model of senatorial exchanges with a Supreme Court nominee are shown in table 2. Because of the nonlinear nature of our model, we use predicted values to address our results rather than looking strictly at the coefﬁcients. We begin with ﬁgure 2, which addresses the estimated number of exchanges a senator will have with the nominee on the basis of institutional arrangements. Beginning with ﬁgure 2a, we ﬁnd that in-party senators engage with the nominee sig- niﬁcantly more under divided government than they do under uniﬁed government. We believe this is because in-party senators should enforce the president’s narrative of the nominee more vigorously during divided government’s more contentious hearings. The more a president advocates for a nominee’s conﬁrmation, the more likely he is to expe- rience legislative failure on major policy initiatives (Madonna, Monogan, and Vining 2016); the in-party consequently has an incentive to advocate for the nominee in the pres- ident’s place so they do not suffer legislative consequences. Figure 2a conﬁrms that in-party for their conﬁrmation hearings. Maas and Hox (2005) ﬁnd that a sample size of 50 or fewer at “level- two,” or the aggregate level, leads to biased estimates of standard errors. Given our data limitations, we believe multilevel modeling techniques might produce inaccurate or imprecise estimates. We conducted a likelihood ratio test to compare a multilevel negative binomial regression with varying intercepts to the pooled negative binomial model, which suggested there was not a signiﬁcant difference between the multilevel and pooled models ( p 5 :47). Additionally, the Akaike information criterion indicates the pooled model better ﬁts the data. The results of the multilevel model are substantively similar, and we include them in the appendix. Senatorial Grandstanding | 347 Figure 2. Circles are the estimated number of exchanges a senator will have with the nominee. Vertical lines around that estimate are 95% confidence intervals. a, Effects for the in-party; b, out-party estimates. Within each panel, unified government appears on the left, and divided government on the right. All continuous variables are held at their means, and categorical variables are held at their modes. senators do modify their behavior based on institutional arrangements; an in-party senator asks only approximately 29 questions during a coronation but engages with the nominee 92 times during contentious divided-government nominations. Moving to the examination of the out-party in ﬁgure 2b, we theorized that out-party senators engage more frequently with a nominee because they must provide political cover for their failure to block a counterpartisan president’s nominee. The data bear this out. Our results show that out-party senators engage with the nominee signiﬁcantly more under divided government than they do under uniﬁed government. An out-party sen- ator on the losing side of a coronation should engage with the nominee 44 times, while an out-party senator engaging in a contentious ﬁght during divided government should engage with the nominee approximately 73 times during a hearing. Importantly, as we expected, there is a statistically signiﬁcant difference in the question- asking behavior of in-party and out-party senators during uniﬁed government (i.e., com- paring the left plotting symbol in ﬁg. 2a to the left plotting symbol in ﬁg. 2b). When conﬁrmation is a certainty, in-party senators are signiﬁcantly less likely to ask the nom- inee questions than their out-party colleagues who are working to extract answers and mitigate damage. In-party senators have a policy victory for constituents, and out-party senators offer their constituents fervent symbolic representation. Conversely, there is not a statistically signiﬁcant difference in the question-asking behavior of in-party and out- party senators during divided government. That is, out-party senators do not appear to question a nominee any more (or less) than their in-party counterparts when the pres- ident’s party does not also control the Senate ( p 5 :11). When conﬁrmation is still rea- sonable but less certain, in-party senators grandstand to protect their nominee, and out- party senators again grandstand to protect their reputations with constituents. Both sides 348 | JOURNAL OF LAW AND COURTS | FA L L 2 0 2 0 ask the nominee more questions and press the nominee for more answers. This result re- inforces our theory that senators in both parties engage in grandstanding. Institutional arrangements alone do not predict senator behavior during Supreme Court conﬁrmation hearings, however. We turn to ﬁgure 3 to examine the role of constituent support. Again, we expect that constituents’ support of the nominee will alter an in-party senator’s behavior but may not have the same inﬂuence on the out-party. Be- ginning with the out-party senators—in the top half of ﬁgure 3—we ﬁnd support for our hypothesis. Figure 3a shows that under divided government, as public support for the Figure 3. Solid lines indicate predicted senator exchanges across level of state public opinion support for the nominee. Dashed lines are 95% confidence intervals around those estimates. a, Effects for out-party senators under divided government; b, for out-party sen- ators under unified government; c, for in-party senators under divided government; d, for in- party senators under unified government. All continuous variables are held at their means, and categorical variables are held at their modes. Senatorial Grandstanding | 349 nominee in a senator’s state increases from 53% on the low end to 90% on the high end (covering 95% of the data), the number of exchanges decreases slightly, although the difference is not statistically signiﬁcant ( p 5 :25). As we expected, out-party senators who control the Senate are willing to lambaste a nominee whether constituents like her or not. Turning next to ﬁgure 3b, we see that out-party senators are similarly unaffected by public opinion when questioning a nominee under uniﬁed government. Again, as public support for the nominee increases, the number of questions the out-party asks decreases a slight but statistically insigniﬁcant amount ( p 5 :17). When the government is uniﬁed and the out-party is sure to lose on the nomination, out-party senators are willing to ques- tion a nominee regardless of how much their constituents support her. Turning to ﬁgure 3c, we see that an in-party senator’s propensity to interact with the nominee wanes as state support for the nominee increases. In-party senators should engage with the nominee an astounding 132 times when constituent support is low, and this number drops to 39 exchanges when support is high.10 This, again, shows senators engag- ing in constituent maintenance. When their constituents are not completely behind a nominee, the in-party senators push the president’s agenda to make the nominee look lik- able and qualiﬁed. For example, constituents in Senator Chuck Grassley’s home state of Iowa showed lukewarm support of Judge Robert Bork’s nomination, with only 59% of his constituents supporting the nomination. Grassley, a Republican who ultimately voted in favor of Bork’s conﬁrmation, prefaced several questions with statements underscoring their similar approaches to issues, including the death penalty (US Senate 2016). Conversely, when the government is uniﬁed, constituents’ positive opinion of the nom- inee appears to actually increase the number of questions that in-party senators ask. Fig- ure 3d shows the small but statistically signiﬁcant positive inﬂuence that public opinion has on an in-party senator’s behavior during uniﬁed government. As constituent support for the nominee increases, in-party senators ask more questions. An in-party senator in a state with low support for the nominee asks about 25 questions in a hearing, while an in-party senator in a state with high support asks about 31. Anecdotal evidence suggests senators in this case are offering nominees softball questions that play well on television the next day; for example, Senator Ben Sasse asked Neil Gorsuch how he could answer questions for so long without taking a bathroom break (Hulse 2017), a moment well 10. This 93-question difference is at least partially due to senators’ atypical questioning of Robert Bork and Clarence Thomas. Senator Arlen Specter, a Republican who asked more questions than al- most anyone else during the Bork hearings, noted that the controversy surrounding the nominee affected his approach to asking questions during the hearings (Specter and Robbins 2002, 2012), and, more broadly, senators as a group simply asked more questions during these hearings. We do not control for these two nominations, as such a control would be post hoc, and instead employ a more comprehensive control for controversial nominees, which we include in the appendix. We treated Bork, Thomas, Alito, and Sotomayor as controversial nominees on the basis of problems raised before the hearings. Controlling for controversial nominees adds no explanatory power to our model, nor does it substantively change the results found here. 350 | JOURNAL OF LAW AND COURTS | FA L L 2 0 2 0 covered by major media outlets. When coronation is evident, in-party senators ask as few questions as they can while still showing constituents how great the nominee is (and, consequently, how great the senator is for supporting the nomination). Finally, regarding the remaining variables that are statistically signiﬁcant in our model, our results align with expectations in the literature. As ideological distance between the senator and the nominee grows, the senator engages with the nominee more frequently. The effect is statistically signiﬁcant across in-party and out-party senators and exists regard- less of uniﬁed or divided government. We also ﬁnd that as a higher percentage of interest groups oppose the nomination, senators engage with the nominee more. This result aligns with Cameron et al.’s (2013) ﬁnding that interest group mobilization is one of the main sources of modern-day contentiousness in Supreme Court conﬁrmations. Logically, this also makes sense, as interest groups introduce information into the lexicon that senators will eventually need to address with the nominee. Additionally, our results suggest that senators who were attorneys before joining the Senate ask the nominee more questions. This, again, aligns with our expectations that attorneys have more experience with ques- tioning people about their lives and are better prepared for interrogation of a Supreme Court nominee as a result. T H E G O R S U C H A N D K AV A N AU G H H E A R I N G S After Elena Kagan’s conﬁrmation in 2010, the Supreme Court’s membership remained stable until Justice Antonin Scalia’s death in 2016. President Obama, a Democrat, nom- inated Merrick Garland to the seat, but, in an unprecedented move, Republican Senate majority leader Mitch McConnell refused to act on the nomination until after the pres- idential election (Kaplan 2018). Republican Donald Trump won, Garland never received a hearing or a vote, and the president nominated Neil Gorsuch to ﬁll Scalia’s seat (Elving 2018). The conﬁrmation hearing was contentious, but the Republican-controlled Senate conﬁrmed Gorsuch to the bench (Elving 2018). In the process, the Senate voted to elim- inate the ﬁlibuster and conﬁrm Supreme Court nominees by a simple majority (Kaplan 2018). When the Senate Judiciary Committee interrogated Brett Kavanaugh to replace Justice Anthony Kennedy in 2018, the out-party Democrats pushed hard against the nominee, with several senators heatedly pressing the nominee to answer their questions (Seidman and Tamari 2018; Zhou 2018), while in-party senators went out of their way to ask easy questions that required long and easy answers (Cohrs 2018). Afterward, a U.S. News and World Report writer wondered whether the Kavanaugh hearings had “ir- reparably changed the whole [conﬁrmation] process” (Williams 2018). And, for all intents and purposes, the Supreme Court conﬁrmation process did fundamentally change be- tween Kagan and Gorsuch. But did the Senate Judiciary Committee members change their approach to questioning nominees, too? To answer this question, we read through the Gorsuch and Kavanaugh conﬁrmation hearing transcripts and, following the deﬁnition of an exchange we outlined earlier, counted Senatorial Grandstanding | 351 Figure 4. Circles are the estimated number of exchanges a senator in a unified govern- ment will have with the nominee. Vertical lines around that estimate are 95% confidence intervals. a, Mean number of exchanges for the hearings that occurred during unified government between O’Connor in 1981 and Kagan in 2010; b, estimates for the Gorsuch and Kavanaugh hearings. Within each panel, the in-party appears on the left and the out-party on the right. All continuous variables are held at their means, and categorical variables are held at their modes. the number of exchanges that each senator had with each of the nominees. Because both hearings took place under uniﬁed government, we examined the difference in how in-party and out-party senators under uniﬁed government questioned the nominees in the pre- and post-Garland nomination era. To do so, we employ difference-in-means tests.11 The results, shown in ﬁgure 4, suggest the members of the Senate Judiciary Com- mittee have not changed their overall approach to the hearings. While both sides ask sig- niﬁcantly more questions overall in this new era—ﬁtting the trend suggested by political commentators—opposition-party senators still engage signiﬁcantly more with the nom- inee. The in-party asks as few questions as possible, and the out-party repeatedly engages with the nominee. Turning ﬁrst to ﬁgure 4a, we see the same trend originally outlined in ﬁgure 2. Be- tween the O’Connor hearings in 1981 and the Kagan hearings in 2010, an in-party sen- ator whose president selected the nominee asks about 23 questions, while an out-party senator in the same hearing asks about 41, which is signiﬁcantly more. Figure 4b tells the same story for the Gorsuch and Kavanaugh hearings; an in-party senator engages with the nominee about 37 times, while an out-party senator engages with the nominee at 11. We hoped to include both Gorsuch and Kavanaugh in our primary analysis of Supreme Court conﬁrmation hearings. Unfortunately, at the beginning of President Trump’s third year in ofﬁce, he has yet to sign enough legislation to generate a NOMINATE score, which is necessary for placing Gorsuch and Kavanaugh in ideological space (Lewis et al. 2019). Because we cannot place Gorsuch and Kavanaugh in ideological space, we do not have the necessary covariates to include them in our model. 352 | JOURNAL OF LAW AND COURTS | FA L L 2 0 2 0 almost double the rate, asking about 60 questions per hearing.12 This, too, is a statistically signiﬁcant difference. Importantly, however, the relationship remains the same: in-party senators do the minimum necessary to protect their nominee, while out-party senators push to either make him look bad or overturn his nomination outright. DISCUSSION When Senator Ted Kennedy questioned Clarence Thomas during his 1991 Supreme Court conﬁrmation hearings, he packed 23 questions into 30 minutes of interrogation. As a member of the majority party questioning someone nominated by the opposing party’s president (i.e., as a senator stymied by divided government), Kennedy spoke to Thomas in quick questions and comments, rephrasing questions when Thomas dodged and interrupting his answers with clarifying questions if necessary (US Senate 2016). Given the opportunity to overturn a nomination, Kennedy modiﬁed his question-asking behavior. Three years later, when Kennedy found himself questioning his own party’s nominee, Stephen Breyer, his behavior changed. Kennedy asked a total of six questions in his 30 minutes. He asked Breyer about his record on women’s rights and his book and read into the record a letter about Breyer’s pro-environment rulings (US Senate 2016). While some could suggest Kennedy was simply propping up his former protégé (Toobin 2008), he engaged in the same sort of easygoing behavior the year before, asking Ruth Bader Ginsburg eight long questions about her work as a women’s rights advocate and giving her the time to give eight complete and thoughtful responses (US Senate 2016). Working his way to assured coronations, Kennedy took his time advertising Breyer’s and Ginsburg’s credentials and letting them do the same. He wanted to reinforce the president’s message about these judges’ qualiﬁcations for the job. These examples, which, as we demonstrate, are not anomalous, show how senators modify their behavior based on institutional arrangements and the electoral opportunities they provide. In this article, we set out to determine whether senator behavior during Supreme Court conﬁrmation hearings is a function of institutional arrangements and constituent support. We ﬁnd that it is. Senators in both parties engage with the nominee more frequently when the government is divided (i.e., when the president’s party does not hold the majority of Senate seats). When the opposition party can theoretically block a nomination, those sen- ators engage with the nominee enough to either block the nomination or (more likely) mitigate the damage caused by a successful conﬁrmation by asking symbolically important questions. In this situation, senators from the in-party ask as many questions as the out- party does, seeking to reinforce the president’s narrative and get the nominee conﬁrmed. If, however, the president’s party also has the Senate majority, senator behavior changes. 12. We counted the exchanges for days 2 and 3 of Brett Kavanaugh’s hearing. Day 1 did not involve any back-and-forth between senators and the nominee, and when the hearing resumed in late September, Republicans had a proxy engage with the nominee for part of the day. Senatorial Grandstanding | 353 Members of the president’s party engage with the nominee as little as possible, asking enough questions to highlight qualiﬁcations but not enough to cause problems. Those in the opposition party do the opposite, engaging with the nominee frequently in an at- tempt to rhetorically represent constituents who will dislike the nomination’s ﬁnal out- come. Support for the nominee in an in-party senator’s state can alter this behavior, leading in-party senators to approach the nomination differently if their constituents really like the nominee. These ﬁndings expand our understanding of how potential justices are questioned and what inﬂuences members of the Senate Judiciary Committee’s behavior during conﬁrma- tion hearings. Previous scholarship noted that hearings are an increasingly confrontational ordeal that, despite a highly likely outcome (i.e., conﬁrmation), play an important role in our constitutional order (Collins and Ringhand 2013; Farganis and Wedeking 2014). Ad- ditionally, scholarship has long noted that legislators represent their constituents in differ- ent ways (Wlezien 1995; Hill and Hurley 2002), including on matters of the judiciary (Kastellec et al. 2010; Ura and Wohlfarth 2010). We contribute to these lines of inquiry by bridging the gap between these two literatures and demonstrating that legislators use conﬁrmation hearings as a way to salvage some representative function even when they cannot secure a policy victory for their constituents. While some Court observers may re- gard hearings as a “charade” or “pointless,” senators on the Judiciary Committee do not appear to view them as such. Instead, they appear to be legitimate opportunities to score points with their electorate. We demonstrate that legislators not only alter the style of rep- resentation to their advantage but also seem to consider the venue and institutional dy- namics when attempting to represent their constituents. There are, of course, limitations to our ﬁndings. First, it is difﬁcult to separate conten- tiousness, polarization, and time. As Farganis and Wedeking (2014) note, contentiousness and polarization on the Senate Judiciary Committee have increased over time (see their ﬁg. 5.4), as has polarization in the Senate as a whole (McCarty, Poole, and Rosenthal 2006). We do not make an explicit argument about how the changes in the Senate as a whole might affect Supreme Court conﬁrmation hearings, and that is because our results suggest that the Senate Judiciary Committee has not dramatically altered its question- asking behavior over the period of our study. Institutional arrangements and public opin- ion explain committee members’ question-asking behavior as well as or better than any time or polarization explanation (see the appendix for more details). We feel this argu- ment is facially valid; consider, for example, that when the Republican-led Senate re- fused to schedule hearings for Obama-nominated Merrick Garland in 2016, the majority party used procedural warfare, rather than the trappings of a conﬁrmation hearing, to over- turn a Supreme Court nominee (Kaplan 2018). But that is not to say that polarization or changes over time are unimportant to the process as a whole. Question-asking intensity may simply be a function of affective polarization, in which, for example, Republicans come to loathe Democrats (e.g., Iyengar and Westwood 2015). We argue, however, that the hearings would still serve a representative capacity even if this were true. Indeed, some 354 | JOURNAL OF LAW AND COURTS | FA L L 2 0 2 0 suggest that individuals derive more satisfaction from irking those across the aisle than achieving true policy victories (e.g., Coaston 2017). While we examine only conﬁrmation hearings for the Supreme Court, we believe the framework developing electoral motivations for congressional behavior other than yea and nay votes is important and a promising area for future research. Because we focus on the electoral motivations for senatorial behavior on one committee, we are curious about the occurrence of grandstanding during other conﬁrmation hearings. Cabinet nominees, for example, are high-proﬁle presidential nominees whose conﬁrmation hearings go through the Senate committee with jurisdiction over their department. The committees vote on nominees and send the nominations to the full Senate for votes, creating a similar environment to that of a Supreme Court conﬁrmation hearing. At the same time, however, senators subject these other executive nominations to the dilatory tactics they eschew dur- ing Supreme Court conﬁrmation hearings (Ostrander 2016), adding a potential new wrinkle to senators’ grandstanding opportunities. Examining senators’ engagement behav- ior in these situations may be a fruitful avenue for later research. Additionally, future studies on any type of nomination should include a clear measure of the hostility or intensity of exchange. As we mention earlier, we look at the frequency of exchanges partially owing to the difﬁculty of obtaining a valid and direct measure of the intensity of an exchange. With machine learning techniques consistently improving to better analyze language, a useful measure of hostility cannot be far behind. 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