Party polarization and congressional committee consideration of constitutional questions

Northwestern University Law Review

Volumn 105, Issue 2, 2011, Pages 737-788

  Devins, Neal ^a  

^a The College of William and Mary   (United States)

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EID: 81255178462     PISSN: 00293571     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (442)

1. See infra note 22 and accompanying text (discussing the methodology employed in this Article in identifying constitutional hearings).
2. Keith E. Whittington, Neal Devins & Hutch Hicken, The Constitution and Congressional Committees: 1971-2000, in THE LEAST EXAMINED BRANCH: THE ROLE OF LEGISLATURES IN THE CONSTITUTIONAL STATE 396 (Richard W. Bauman & Tsvi Kahana eds., 2006).
3. The growing dominion of the Judiciary Committees was discernable at that time.
4. see ibid. at 405-08, but in 2000 and from 2002 to 2009, the Judiciary Committees heard an even larger percentage of constitutional hearings than at any other time in that study.
5. See infra Figure 7
6. cf. infra Figures 9-12 (showing the increased percentage of constitutional hearings heard by the Judiciary Committees from 1994 to 2009).
7. Most notably, the data from 1970 through 2000 do not suggest declining congressional interest in the Constitution. Because of the 1995 Republican takeover and the subsequent spike in congressional interest in the Constitution, the data from 1995 to 2000 do not suggest a meaningful diminution in committee consideration of constitutional questions.
8. See Whittington, Devins &Hicken, supra note 2, at 397 (noting a "surprising consistency in congressional hearing activity"). Eight years later, the data do suggest a diminution in interest.
9. See infra Figures 1, 3 & 4. Correspondingly, the impact of party polarization on the number and location of constitutional hearings seems stronger today than ever.
10. For this reason, it is difficult to say with certainty why a particular issue is or is not pursued by a committee. The explanations I offer should therefore be seen as informed guesses. That said, I think this Article amasses sufficient information to support its conclusions: anyone who disagrees with my claims should have the facts needed to advance a competing hypothesis.
11. Practices from 2007 roughly track the pattern of the period of unified Republican government from 2001 to 2006, when there was a gradual dip in constitutional hearings. See infra Figures 1 and 3 and note 33 and accompanying text. Data from 2009 largely follow data from the previous two years and Administrations. See infra Figures 1 & 2. In sharp contrast, the 1995 Republican takeover of Congress was immediately transformative.
12. See infra Figures 1 & 2 (documenting spike in 1995 hearings)
13. see also infra notes 68-74 and accompanying text.
14. At the same time, the Judiciary Committees are hardly immune to Part II factors that contribute to the ebb and flow of constitutional hearings in Congress. For example, when constitutional issues are more salient to the national policy agenda, the number of constitutional hearings increases throughout Congress-so that the Judiciary Committees hold more constitutional hearings at the very time that other committees in Congress are holding more constitutional hearings.
15. See infra Figures 5-7. Likewise, party polarization helps shape the constitutional agendas of the Judiciary Committees. The choices of which issues to pursue and of which witnesses to invite to testify are very much tied to party polarization.
16. See Neal Devins, The Academic Expert Before Congress, 54 DUKE L.J. 1525, 1539-45 (2005)
17. see also infra note 167 and accompanying text (discussing the Judiciary Committees' tendency since 1985 to call witnesses who back up policy preferences).
18. John H. Aldrich & David W. Rohde, Congressional Committees in a Continuing Partisan Era, in CONGRESS RECONSIDERED 217, 217 (Lawrence C. Dodd & Bruce I. Oppenheimer eds., 9th ed. 2009). Political parties are the other principal organizing structure of Congress.
19. Ibid.
20. Keith E. Whittington, Hearing About the Constitution in Congressional Committees, in CONGRESS AND THE CONSTITUTION 87, 87 (Neal Devins & Keith E. Whittington eds., 2005).
21. BRYAN D. JONES & FRANK R. BAUMGARTNER, THE POLITICS OF ATTENTION: HOW GOVERNMENT PRIORITIZES PROBLEMS 263 (2005)
22. accord ibid. at 258-63 (examining congruence between congressional agenda and policy, and policy priorities of the American people)
23. David C. King, The Nature of Congressional Committee Jurisdictions, 88 AM. POL. SCI. REV. 48, 51 (1994) (discussing committee jurisdiction and jurisdictional wrangling among committees)
24. Roger Larocca, Committee Parallelism and Bicameral Agenda Coordination, 38 AM. POL. RES. 3, 17 (2010) (noting that issues that are high on the public agenda are more likely to be considered in hearings)
25. Adam D. Sheingate, Structure and Opportunity: Committee Jurisdiction and Issue Attention in Congress, 50 AM. J. POL. SCI. 844, 847 (2006) (discussing the relationship between congressional politics and policy agendas, particularly institutional effects on individual issues)
26. Jeffery C. Talbert et al., Nonlegislative Hearings and Policy Change in Congress, 39 AM. J. POL. SCI. 383, 385-90 (1995)
27. (discussing committee use of hearings to control the content of legislation).
28. See Whittington, supra note 9, at 87-91 (detailing why political scientists study congressional hearings and including citations to the literature).
29. THOMAS E. MANN & NORMAN J. ORNSTEIN, THE BROKEN BRANCH: HOW CONGRESS IS FAILING AMERICA AND HOW TO GET IT BACK ON TRACK 217 (2006) (discussing congressional efforts to compel federal court review of Terry Schiavo's termination-of-life-support case).
30. See infra notes 62-84 and accompanying text (linking the declining status of committees to political polarization)
31. infra note 105 and accompanying text (linking committee interest in the Constitution to, among other things, the size of committee staff).
32. This has always been the case, but the prevalence of back-door negotiations may well be tied to party polarization: polarization encourages behind-the-scenes negotiations among party members, who typically present themselves as a unified front at hearings, on the floor of Congress, and so on. See infra notes 71-73, 81, 133-34 (discussing efforts by party leaders to communicate a coordinated message)
33. infra notes 170-72 (discussing rise of party-line voting on judicial nominations). For additional discussion of party-line voting
34. see David M. Herszenhorn, In Health Vote, A New Vitriol, N.Y. TIMES, Dec. 24, 2009, at A1, which discusses party-line voting on health care legislation, and Richard Rubin, Party Unity: An Ever Thicker Dividing Line, 68 CQ WKLY. 122, 123 (2010), which notes that Democrats have a 91% party-unity score and Republicans an 87% unity score. Furthermore, even when Congress holds public hearings, much of the lawmaker and staff deliberation occurs outside of public view. For example, Senate Judiciary Committee members and their staff actively engage in conversations about federal court of appeals nominees, including their likely rulings on highly charged constitutional issues. Telephone Interview with Michael Gerhardt, Special Counsel to Senate Judiciary Committee (June 23, 2010).
35. Richard E. Cohen, Crackup of the Committees, 31 NAT'L J. 2210, 2215 (1999).
36. ROGER H. DAVIDSON & WALTER J. OLESZEK, CONGRESS AND ITS MEMBERS 214 (11th ed. 2008)
37. see also Devins, supra note 7, at 1544.
38. Whittington, supra note 9, at 88 (quoting DAVID R. MAYHEW, AMERICA'S CONGRESS: ACTIONS IN THE PUBLIC SPHERE, JAMES MADISON THROUGH NEWT GINGRICH (2000)).
39. Ibid.
40. accord JOHN MARK HANSEN, GAINING ACCESS: CONGRESS AND THE FARM LOBBY, 1919-1981, at 23 (1991) ("[H]earings often are less a forum for gathering information than a ritual for legitimizing decisions.").
41. See infra Figure 8
42. see also infra notes 52-59 and accompanying text.
43. We used the expander operator. Our search string was "constitution!"
44. This methodology largely mirrors the methodology previously employed in the Constitution and Congressional Committees book chapter. See Whittington, Devins & Hicken, supra note 2, at 398.
45. Although we think our data set is fairly complete, CIS did not use the "constitution" subject term for some hearings that, in fact, did pay substantial attention to constitutional issues. For example, some constitutionally related confirmation hearings were not included in our data set, as I will soon explain. Also, we needed to make several judgment calls about whether a hearing actually featured the Constitution in some meaningful way. That said, the data set that I used "is likely to capture a large proportion of the relevant universe and [is otherwise] broadly representative."
46. Ibid.
47. I have two other comments about the data set: First, rather than simply supplement the data set used in Whittington, Devins & Hicken, supra note 2, this data set is entirely new. We did this because we could not exactly replicate the numbers from the Constitution and Congressional Committees project. This could be a result of possible additions of new hearings by the LexisNexis database over the past several years or, alternatively, the use of the subject term "constitution" in this piece is potentially broader than "constitutional law," the subject term used in the earlier piece. Some differences might also have occurred due to differences in judgment by individuals collecting data as to which hearings related substantively to the Constitution.
48. Second, Judicial and Executive Branch confirmation hearings often use the subject terms "nominations" as well as the name of the position that an individual is nominated for. A federal district court judge, for example, would also have "judges" and "federal district court" as subject terms. Many hearings in which the words "constitution" or "constitutional" are mentioned ten or more times in testimony or prepared statements are excluded from a search that makes use of the "constitutional" subject term. That is not to say that there is substantial attention to constitutional issues in all of these hearings because just two or three questions or answers over the course of a hearing may result in ten references to the Constitution-references to the Constitution may be made in submitted testimony without being pursued at the hearing itself, and several nominees may be under consideration at a single hearing so that no individual nominee is meaningfully questioned about constitutional issues. And our data set should not be seen as including every single hearing in which constitutional issues were aired in a meaningful way. Nonetheless, the omission of some hearings does not undermine this Article's central findings about the frequency and location of constitutional hearings over time. The fact that some relevant hearings are not included will be true of all years covered in the study
49. the larger patterns identified in this Article still hold true. Furthermore, as I discuss infra note 195, my examination of confirmation hearings in which the words "constitution" or "constitutional" were mentioned ten or more times reinforces the central claims in this Article about the impact of party polarization on congressional consideration of constitutional issues. In particular, there were more confirmation hearings that considered constitutional questions in the less polarized period from 1970 to 1989 than in the more polarized period from 1990 to 2009, notwithstanding the fact that increases in the size of the government created more opportunities for the Senate to pursue constitutional questions in the post-1990 period. During the period from 1970 to 1989, there were 72 constitutional confirmation hearings outside of the Judiciary Committee, and from 1990 to 2009, there were 39 constitutional confirmation hearings outside of the Judiciary Committee. This fact speaks to an inverse relationship between party polarization and lawmaker interest in constitutional questions. For a detailed statement of the methodology employed in calculating these numbers, see infra note 195. On the other hand, as I also discuss infra note 195, the Senate Judiciary Committee held significantly more constitutional confirmation hearings from 1990 to 2009 than from 1970 to 1989. This speaks to the Judiciary Committee's continuing interest in the Constitution and, with it, the Judiciary Committee's growing dominion over constitutional hearings throughout the past 25 years.
50. In the House, the 1995 Republican takeover of Congress prompted lawmakers to rethink the boundaries of federal-state authority. For additional discussion.see infra note 33 and accompanying text. In the Senate, judicial confirmations were especially politically heated in 1987, and as a result, the Senate held several constitutionally related judicial confirmation hearings. There were therefore more Senate constitutional hearings in 1987 than 1986.
51. Robert Bork's nomination to the Supreme Court, for example, generated five volumes of published Senate hearings.
52. See Nomination of Robert H. Bork to Be Associate Justice of the Supreme Court of the United States: Hearings Before the S. Comm. on the Judiciary, 100th Cong. (1987).
53. See generally ETHAN BRONNER, BATTLE FOR JUSTICE: HOW THE BORK NOMINATION SHOOK AMERICA (1989) (exploring the Bork nomination and the political struggle it engendered in the Senate).
54. For additional discussion, see Whittington, Devins & Hicken, supra note 2, at 401-02.
55. On occasion, these partisan factors are highly salient, and in Part II, I discuss one such occasion: the 1995 Republican takeover of Congress. Overall, however, none of these factors seems significant in identifying patterns in the number of constitutional hearings.
56. See supra Figure 1 (identifying the number of constitutional hearings in the House and Senate from 1970 to 2009). Calculations were made by totaling all House hearings during periods of unified and divided government and dividing the unified-government total by 13 and the divided-government total by 27.
57. See supra Figure 1 (identifying the number of constitutional hearings in the House and Senate from 1970 to 2009). Calculations were made by totaling all Senate hearings during periods of unified and divided government and dividing the unified-government total by 17 and the divided-government total by 23.
58. I mention this because averages are arguably misleading. For example, 6 of the 13 years that the House was unified occurred during the George W. Bush Administration, a time when there were fewer constitutional hearings than in any time from 1970 to 2000.
59. See supra Figures 1, 3 & 4 (documenting shifts from unified to divided government in 1981, 1983, 1995, and 2007). For additional discussion, see infra notes 163-67 and accompanying text.
60. See supra Figure 1.
61. See supra Figure 1.
62. See supra Figure 1.
63. For example, the 1995 Republican takeover of Congress triggered a spike in constitutional hearings because the Republican Party agenda focused on constitutional issues such as federal-state relations.
64. See supra Figures 1 & 2
65. see also Whittington, supra note 9, at 93-94 (discussing the spike in constitutionally oriented committee hearings following Newt Gingrich's assumption of the speakership).
66. See Whittington, Devins & Hicken
67. supra note 2, at 402 (contending that changes in party control in the Senate in 1981, 1987, and 1995 did not significantly impact the number of constitutional hearings held). Consider, for example, the 1987 fight over the Bork confirmation. The Democrats regained control of the Senate in 1987, but the power shift did not cause the confirmation battle. Instead, it took place because Justice Lewis Powell retired from the Court and Ronald Reagan nominated Robert Bork to fill the vacant seat. Yet if Republicans had maintained control of the Senate, Bork and other related battles would have played out differently-thus impacting the number of constitutional hearings held that year.
68. Figure 8, infra, illustrates dramatic differences in party polarization between the 1970s and the post-1995 period.
69. In the House, for example, the average number for Democrat control is 35 and Republican control is 25. This number reflects the fact that Republicans controlled the House for 12 of the 14 high polarization years and Democrats controlled the House throughout the period from 1970 to 1994. In the Senate, the average number is 21 in Republican years and 26 in Democratic years. The Senate range is closer because Republicans controlled the Senate from 1981 to 1986. See supra Figure 1.
70. In looking at four-year blocks in which each party controlled Congress for two of those years, I was able to answer the following question: were differences between the average number of hearings held by Democrats and Republicans tied to party differences or, instead, tied to historical periods? If Democrats consistently held more hearings, the Democratic Party would be more interested in constitutional hearings than Republicans. On the other hand, if Republicans held as many hearings as Democrats during these four-year blocks, differences in party averages would seem tied to historical periods. That latter explanation, of course, is what the data show-suggesting that the frequency of constitutional hearings is tied more to historical periods than to which party controls Congress. See supra Figure 1.
71. In the Senate, the average was 21 when Republicans controlled the Senate and 26 when Democrats controlled the Senate. In the House, the average was 25 when Republicans controlled the House and 35 when Democrats controlled the House. See supra Figure 1 and note 36.
72. See Whittington, Devins & Hicken, supra note 2, at 402. On the related issue of how Democrats and Republicans send out competing constitutional messages, see infra notes 133-34134 and accompanying text.
73. For example, when Democrats regained control of Congress in 2007, lawmakers held hearings to question the constitutionality of the Bush Administration's War on Terror initiatives. Examples include Preserving the Rule of Law in the Fight Against Terrorism: Hearing Before the S. Comm. on the Judiciary, 110th Cong. (2007)
74. Turning Spy Satellites on the Homeland: The Privacy and Civil Liberties Implications of the National Applications Office: Hearing Before the H. Comm. on Homeland Sec., 110th Cong. (2007)
75. Upholding the Principle of Habeas Corpus for Detainees: Hearing Before the H. Comm. on Armed Servs., 110th Cong. (2007)
76. Habeas Corpus and Detentions at Guantanamo Bay: Hearing Before the Subcomm. on the Constitution, Civil Rights, and Civil Liberties of the H. Comm. on the Judiciary, 110th Cong. (2007)
77. Constitutional Limitations on Domestic Surveillance: Hearing Before the Subcomm. on the Constitution, Civil Rights, and Civil Liberties of the H. Comm. on the Judiciary, 110th Cong. (2007)
78. and Restoring Habeas Corpus: Protecting American Values and the Great Writ: Hearing Before the S. Comm. on the Judiciary, 110th Cong. (2007). For a related argument
79. see Ilya Somin & Neal Devins, Can We Make the Constitution More Democratic?, 55 DRAKE L. REV. 971, 986-87 (2007), which highlights the relationship between unified and divided government and congressional oversight of the executive.
80. See infra Part II.
81. See infra Part III.
82. Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 HARV. L. REV. 2311 (2006).
83. My decision to divide hearing data into the periods from 1970 to 1980, from 1981 to 1994, and from 1995 to 2009 roughly tracks the periods identified by John Aldrich and David Rohde. Aldrich and Rohde divided the current partisan era into three periods: 1970 to 1982, 1983 to 1994, and post-1995. See Aldrich & Rohde, supra note 8, at 220-22.
84. See supra Figures 9-12. Although I highlight the role of party polarization in the changing patterns of constitutional hearings, I am not suggesting that other factors are not also at play. Consider, for example, that the Judiciary Committee percentage leveled off in the House after Democrats regained control in the late 2000s.
85. See supra Figure 7. On the one hand, unlike House Republicans in 1995, the House Democrats in 2007 did not deploy numerous committees to advance a constitutional agenda throughout Congress, which speaks to partisan differences between Democrats and Republicans. On the other hand, the 1995 Republican takeover of the Senate did not meaningfully impact the number of constitutional hearings. For additional discussion of the 2007 Democratic takeover, see infra notes 166, 206 and accompanying text.
86. Part III builds upon a very brief discussion of this issue in Whittington, Devins & Hicken, supra note 2, at 405-08.
87. Portions of the following two paragraphs are drawn from Devins, supra note 7, at 1534-37.
88. See supra Figure 8 (documenting comparatively low party polarization throughout the 1960s and 1970s)
89. see also Sean M. Theriault, Party Polarization in the U.S. Congress: Member Replacement and Member Adaptation, 12 PARTY POL. 483, 484 (2006)
90. Sean M. Theriault, The Case of the Vanishing Moderates: Party Polarization in the Modern Congress 6 figs. 1 & 2 (Sept. 23, 2003) (unpublished manuscript), https://www.msu.edu/~rohde/Theriault.pdf [hereinafter Theriault, Vanishing Moderates]. For a general discussion of party polarization since the early 1970s
91. see SEAN M. THERIAULT, PARTY POLARIZATION IN CONGRESS (2008) [hereinafter THERIAULT, PARTY POLARIZATION].
92. See Steven S. Smith & Gerald Gamm, The Dynamics of Party Government in Congress, in CONGRESS RECONSIDERED, supra note 8, at 141, 147 fig.7-2, 151 fig.7-4.
93. Richard Pearson, Ex-Gov. George C. Wallace Dies at 79, WASH. POST, Sept. 14, 1998, at A1.
94. See Jason M. Roberts & Steven S. Smith, Procedural Contexts, Party Strategy, and Conditional Party Voting in the U.S. House of Representatives, 1971-2000, 47 AM. J. POL. SCI. 305, 306 (2003)
95. (tracking in particular the rapid growth of Southern Republicans).
96. See Samuel Issacharoff, Collateral Damage: The Endangered Center in American Politics, 46 WM. & MARY L. REV. 415, 428-31 (2004)
97. Daniel R. Ortiz, Got Theory?, 153 U. PA. L. REV. 459, 477-78 (2004).
98. For example, Karl Rove, an advisor to President George W. Bush, attributed the electoral success of Republicans to the Party's efforts to bring religious conservatives to the polls.
99. See Jeffrey Toobin, Ashcroft's Ascent, NEW YORKER, Apr. 15, 2002, at 50, 63
100. cf. Morris P. Fiorina, Whatever Happened to the Median Voter? 16-18 (Oct. 2, 1999) (unpublished manuscript prepared for the MIT Conference on Parties and Congress), http://www.stanford.edu/~mfiorina/Fiorina%20Web%20Files/MedianVoterPaper.pdf (noting that the greatest increase in polarization is in caucus and party primary elections). On the linkage between ideology and party loyalty
101. see Roberts & Smith, supra note 52, at 313
102. See also infra notes 140, 198-200 and accompanying text (discussing the impact of Republican ties to social conservatives on the types of constitutional hearings held in the House of Representatives).
103. See Roberts & Smith, supra note 52, at 306.
104. See THERIAULT, PARTY POLARIZATION, supra note 49, at 205, 211 (discussing Gingrich Senators)
105. C. Lawrence Evans, Committees, Leaders, and Message Politics, in CONGRESS RECONSIDERED 220 (Lawrence C. Dodd & Bruce I. Oppenheimer eds., 7th ed. 2001) (discussing Gephardt Senators)
106. see also THERIAULT, PARTY POLARIZATION, supra note 49, at 202 (noting that the 1990s saw "an influx of ideologically committed conservatives into the Senate, with many of them being veterans of the highly partisan house" (quoting BARBARA SINCLAIR, UNORTHODOX LAWMAKING: NEW LEGISLATIVE PROCESSES IN THE U.S. CONGRESS 75 (3d ed. 2007)))
107. Alan I. Abramowitz, Party Realignment, Ideological Polarization, and Voting Behavior in U.S. Senate Elections, in U.S. SENATE EXCEPTIONALISM 31,(Bruce I. Oppenheimer ed., 2002) (noting that party cohesion and party-line voting increased substantially during the 1990s).
108. See 108th House Rank Ordering, VOTEVIEW.COM, http://voteview.com/hou108.htm (last updated Aug. 25, 2005). For an article explaining the methodology employed in these rankings
109. see Keith T. Poole & Howard Rosenthal, D-NOMINATE After 10 Years: A Comparative Update to Congress: A Political-Economic History of Roll-Call Voting, 26 LEGIS. STUD. Q. 5 (2001).
110. 108th Senate Rank Ordering, VOTEVIEW.COM, http://voteview.com/sen108.htm (last updated Oct. 26, 2004). The Democrat was Georgia Senator Zell Miller.
111. Ibid.
112. See Party Polarization: 1879-2010, POLARIZED AMERICA, http://polarizedamerica.com (last updated Jan. 11, 2011). Polarization was also fueled by changes in federal regulatory policy, most notably the repeal of the Fairness Doctrine in 1987, and the proliferation of media outlets that allowed conservative and liberal audiences to get their news and opinion programming from stations that reinforced their political beliefs. The repeal of the Fairness Doctrine, as Cass Sunstein observed, "produced a flowering of controversial substantive programming, frequently with an extreme view of one kind or another" and, in so doing, "create[d] group polarization, and all too many people... exposed to louder echoes of their own voices, resulting in social fragmentation, enmity, and misunderstanding."
113. Cass R. Sunstein, Deliberative Trouble? Why Groups Go to Extremes, 110 YALE L.J. 71, 101-02 (2000)
114. see also Thomas W. Hazlett & David W. Sosa, Was the Fairness Doctrine a "Chilling Effect"? Evidence from the Postderegulation Radio Market, 26 J. LEGAL STUD. 279, 295 (1997) (noting dramatic increase in informational programming on AM radio).
115. In particular, Pew Research Center polls revealed that, in 2004, George W. Bush outpolled John Kerry 70% to 21% among Fox viewers but that Kerry outpolled Bush 67% to 26% among CNN viewers.
116. Dan Bernhardt et al., Political Polarization and the Electoral Effects of Media Bias, 92 J. PUB. ECON. 1092, 1092-93 (2008).
117. Likewise, Republicans account for only 24% of NPR listeners whereas Democrats account for only 28% of listeners to talk radio, and self-identified liberals account for just 18% of radio listeners. News Release, The Pew Research Center for the People and the Press, Online News Audiences Larger, More Diverse: News Audiences Increasingly Politicized 8 (June 8, 2004) (on file with author). These data back up the claim that the proliferation of media outlets-cable television, radio, and the Internet-feeds polarization by creating markets for niche audiences; by way of contrast, "[i]f this change in the parties had occurred half a century ago, the dominant news media might have moderated polarizing tendencies because of their interest in appealing to a mass audience that crossed ideological lines. But the incentives have changed: on cable, talk radio, and the Internet, partisanship pays." Paul Starr, Governing in the Age of Fox News, ATLANTIC, Jan./Feb. 2010, at 95, 98.
118. Theriault, Vanishing Moderates, supra note 49, at 5. Theriault's data covered the twenty-year period from 1986 to 2006. The trend has continued since. See Party Polarization: 1879-2010, supra note
119. Thanks to Steve Smith for suggesting that I think about changing patterns in constitutional hearings as a question of supply and demand.
120. David W. Rohde et al., Parties, Committees, and Pivots: A Reassessment of the Literature on Congressional Organization 12 (Aug. 22, 2008) (unpublished manuscript prepared for the 2008 American Political Science Association Meeting), http://research.allacademic.com (select "Titles" from the drop down box and search for "Parties, Committees, and Pivots" from the "Quick Search" box on the main page; then find the APSA presentation and follow the link entitled "Application/PDF").
121. STEVEN S. SMITH, PARTY INFLUENCE IN CONGRESS 120 (2007).
122. Aldrich & Rohde, supra note 8, at 219-20.
123. Ibid. at 220.
124. See BARBARA SINCLAIR, LEGISLATORS, LEADERS, AND LAWMAKING: THE U.S. HOUSE OF REPRESENTATIVES IN THE POSTREFORM ERA 164 (1995)
125. Aldrich & Rohde, supra note 8, at 221
126. Barbara Sinclair, The Emergence of Strong Leadership in the 1980s House of Representatives, 54 J. POL. 657, 668 (1992) [hereinafter Sinclair, Strong Leadership].
127. Sinclair, Strong Leadership, supra note 66, at 671-72.
128. CHRISTOPHER J. DEERING & STEVEN S. SMITH, COMMITTEES IN CONGRESS 48 (3d ed. 1997). Most of these changes affected the House of Representatives.
129. See id. at 49 (identifying major House and Senate reforms in 1995).
130. See Aldrich & Rohde, supra note 8, at 223. Republicans also centralized control in party leadership by eliminating thirty-one subcommittees-so that it would be easier for the committee chair and party leadership to control committee business.
131. See DEERING & SMITH, supra note 68, at 48-50.
132. Aldrich & Rohde, supra note 8, at 223.
133. At the same time, committee chairs did not always do the bidding of party leadership, and as such, party leaders sometimes bypassed the committee process to advance their agenda.
134. See SINCLAIR, supra note 56, at 132 (discussing House Speaker Dennis Hastert's convening of a party task force to sidestep committee control over the 1999 Patient Bill of Rights).
135. Between 1993 and 1995, House committee staff was reduced from 2147 to 1266. See Norman j. Ornstein et al., VITAL STATISTICS ON CONGRESS 2008, at 110 tbl.5-1 (2008). For additional discussion, see infra text accompanying note 105.
136. See Lawrence C. Evans & Walter J. Oleszek, Congressional Tsunami? Institutional Change in the 104th Congress, in CONGRESS RECONSIDERED 193 (Lawrence C. Dodd & Bruce I. Oppenheimer eds., 6th ed. 1997).
137. See DAVID C. KING, TURF WARS: HOW CONGRESSIONAL COMMITTEES CLAIM JURISDICTION 113-16 (1997) (discussing referrals to multiple committees).
138. Aldrich & Rohde, supra note 8, at 228.
139. Barbara Sinclair, Question: What's Wrong with Congress? Answer: It's a Democratic Legislature, 89 B.U. L. REV. 387, 393 (2009).
140. FRANCES E. LEE, BEYOND IDEOLOGY: POLITICS, PRINCIPLES, AND PARTISANSHIP IN THE U.S. SENATE 174 (2009).
141. See ibid. at 174, 178-80 (noting that the roll call agenda now focuses on the sorts of economic issues that will likely produce cleavage between the two parties). For discussion of why Senate leaders pursue roll call votes that divide the parties, see supra note 59, which suggests that changes in federal regulation and technology fuel polarization, and infra text accompanying notes 79-82, which explains how polarization expands the power base of party leaders.
142. DEERING & SMITH, supra note 68, at 51-52.
143. See SUSAN WEBB HAMMOND, CONGRESSIONAL CAUCUSES IN NATIONAL POLICY MAKING 87-92 (1998).
144. See Evans, supra note 56, at 219.
145. See Aldrich & Rohde, supra note 8, at 232-37.
146. Smith & Gamm, supra note 50, at 161. For additional examples of party-line voting, see supra note 14 and infra note 171 and accompanying text, which discuss minority party efforts to block judicial nominations.
147. This pattern continued through 2009 as the Republican Party vigorously opposed Democratic legislation advanced by the Obama Administration. The 110th Congress saw a record 52 filibusters, a marked increase from the 36 filibusters in the previous Congress. Barbara Sinclair, The New World of U.S. Senators, in CONGRESS RECONSIDERED, supra note 8, at 1, 8. During this same period, from 2007 to 2008, there were 139 cloture votes to end filibusters.
148. Senator Thomas R. Harkin, 2010 Living Constitution Lecture at Brennan Center for Justice, Filibuster Reform: Curbing Abuse to Prevent Minority Tyranny in the Senate (June 21, 2010), http://www.brennancenter.org/content/resource/filibuster_reform_curbing_abuse_to_prevent_minority_tyranny_in_the_sen. In the 111th Congress, from January 2009 to June 14, 2010, there were 98 cloture votes.
149. Ibid. "The sense of institutional stalemate," according to a February 2010 Congressional Quarterly report, "has been underscored by the rapid increase in the use of delaying tactics by the minority party not only to stall major legislation and top-tier nominees but also on matters once considered routine-essentially establishing a 60-vote threshold to advance almost any piece of business that annoys someone willing to mount a filibuster."
150. Joseph J. Shatz, No Winners in a "Broken" Congress, 68 CQ WKLY. 434, 434 (2010)
151. see also Rubin, supra note 14, at 122-23 (discussing Republican efforts to make the threat of filibuster routine for most Democratic legislation). After the 2010 elections, there is good reason to think that this pattern of party-line voting and congressional stalemate will continue. Republicans now hold 47 Senate seats and have gained control of the House, increasing the power of each party to block the legislative initiatives of the other. It is likely that Democrats and Republicans will exercise this power. More than any election before it, the 2010 elections made clear that "the single most significant fact about American politics over the last generation is the emergence of hyperpolarized political parties."
152. Rick Pildes, Political Polarization and the Nationalization for Congressional Elections, BALKINIZATION (Nov. 4, 2010, 7:51 AM), http://balkin.blogspot.com/2010/11/political-polarization-and.html
153. see also Charles M. Blow, Op-Ed., The Great American Cleaving, N.Y. TIMES, Nov. 5, 2010, at A23.
154. See Richard f. Fenno, jr., CONGRESSMEN IN COMMITTEES 1 (1973)
155. DAVID R. MAYHEW, CONGRESS: THE ELECTORAL CONNECTION 16 (1974).
156. Elizabeth Garrett 50 DUKE L.J. 1277, 1300-01 (2001).
157. Ibid. at 1301.
158. See Abner J. Mikva, How Well Does Congress Support and Defend the Constitution?, 61 N.C. L. REV. 587, 609 (1983).
159. J. MITCHELL PICKERILL, CONSTITUTIONAL DELIBERATION IN CONGRESS: THE IMPACT OF JUDICIAL REVIEW IN A SEPARATED SYSTEM 134 (2004).
160. Ibid.
161. see also Keith E. Whittington, James Madison Has Left the Building, 72 U. CHI. L. REV. 1137, 1154 (2005) (reviewing PICKERILL, supra note 89) (noting Pickerill's conclusions on the demise of constitutional deliberation). For reasons I detail infra notes 104-30130 and accompanying text, party polarization fuels these attitudes by making it more likely that legislators will care more about party policy than about the Constitution.
162. PICKERILL, supra note 89, at 143-44.
163. Mikva, supra note 88, at 609-10.
164. See PICKERILL, supra note 89, at 142-43.
165. See infra notes 122-24124 and accompanying text (discussing these phenomena and attributing them to party polarization).
166. See MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS 57-60 (1999).
167. Mark Tushnet, Some Notes on Congressional Capacity to Interpret the Constitution, 89 B.U. L. REV. 499, 504 (2009).
168. See generally TUSHNET, supra note 95 (discussing the intersection of constitutional theory and modern society).
169. Tushnet, supra note 96, at 499.
170. See KEITH E. WHITTINGTON, POLITICAL FOUNDATIONS OF JUDICIAL SUPREMACY: THE PRESIDENCY, THE SUPREME COURT, AND CONSTITUTIONAL LEADERSHIP IN U.S. HISTORY 14-18 (2007).
171. Mikva, supra note 88, at 609. On the related question of whether Congress has the tools necessary to responsibly interpret the Constitution, see Louis Fisher, Constitutional Interpretation by Members of Congress, 63 N.C. L. REV. 707 (1985), which argues in favor of congressional capacity
172. See infra Part III.
173. PICKERILL, supra note 89, at 65.
174. For a general treatment of this issue, see ibid. at 31-61, which highlights the ability of lawmakers to respond to Supreme Court invalidations of federal legislation without actually challenging Supreme Court decisionmaking. I also have written on this topic, contrasting differences in lawmaker power to respond to Supreme Court federalism and individual rights decisions.
175. See Neal Devins, The Federalism Rights Nexus: Explaining Why Senate Democrats Can Tolerate Rehnquist Court Decision Making but Not the Rehnquist Court, 73 U. COLO. L. REV. 1307 (2002).
176. See infra notes 115-18118 and accompanying text.
177. Terry M. Moe & William G. Howell, The Presidential Power of Unilateral Action, 15 J.L. ECON. & ORG. 132, 144 (1999).
178. See Ornstein et al., supra note 72, at 110.
179. On the linkage between party polarization and the shift of lawmaker time away from committee service and toward fundraising and other reelection efforts
180. see Eric Heberlig et al., The Price of Leadership: Campaign Money and the Polarization of Congressional Parties, 68 J. POL. 992 (2006), which explains how political parties organize congressional institutions in order to facilitate fundraising. Committee staff reductions also speak to declining committee influence and, with it, diminishing lawmaker interest in committee service.
181. See supra notes 69-73. Correspondingly, lawmakers and their staffs increasingly focus their energies on fundraising and constituent service.
182. See supra notes 90-92.
183. ANTHONY KING, RUNNING SCARED: WHY AMERICA'S POLITICIANS CAMPAIGN TOO MUCH AND GOVERN TOO LITTLE 49 (1997).
184. See ibid. at 70-72
185. see also Wendy K. Tam Cho & James G. Gimpel, Prospecting for (Campaign) Gold, 51 AM. J. POL. SCI. 255, 255-56 (2007) (illustrating how fundraising demands detract from the time available for normal policy business).
186. See Bruce G. Peabody, Congressional Constitutional Interpretation and the Courts: A Preliminary Inquiry into Legislative Attitudes, 1959-2001, 29 LAW & SOC. INQUIRY 127, 163 (2004).
187. Ibid. at 147 tbl.3. For Peabody's discussion of 1959-1999 differences
188. see ibid. at 156-58.
189. Ibid. at 151. In sharp contrast, in 1999 lawmakers did not rank foreign affairs or the separation of powers as being of "special interest."
190. Ibid.
191. Ibid.
192. In 1959, Supreme Court rulings on communists and school desegregation were central both to the national policy agenda and to voters, especially Southern voters. For additional discussion
193. see Neal Devins, Should the Supreme Court Fear Congress?, 90 MINN. L. REV. 1337, 1342-46 (2006). For general treatments on Court-Congress relations in 1959
194. see DONALD G. MORGAN, CONGRESS AND THE CONSTITUTION: A STUDY OF RESPONSIBILITY (1966)
195. and WALTER F. MURPHY, CONGRESS AND THE COURT: A CASE STUDY IN THE AMERICAN POLITICAL PROCESS (1962).
196. See infra Part III.
197. Peabody, supra note 109, at 147.
198. See ibid. at 157.
199. Keith E. Whittington, Taking What They Give Us: Explaining the Court's Federalism Offensive, 51 DUKE L.J. 477, 512-13 (2007) (quoting MAYHEW, supra note 85, at 74).
200. Ibid. For this very reason, I do not think that lawmakers are increasingly deferential to the courts because of changed attitudes about judicial supremacy. In part, party polarization has fueled lawmaker efforts to pursue jurisdiction-stripping proposals. See infra notes 193-94194 (detailing recent jurisdiction-stripping efforts and linking those efforts to polarization). Moreover, there is no reason to think that there has been a pendulum shift toward judicial supremacy among the American people. Although there is evidence of a slight upward tick of public support for the Court, the degree of difference is slight, and consequently, fundamental changes in congressional committee practices cannot be attributed to changing attitudes toward judicial supremacy.
201. See James L. Gibson et al., The Supreme Court and the U.S. Presidential Election of 2000: Wounds, Self-Inflicted or Otherwise?, 33 BRIT. J. POL. SCI. 535, 543 (2003) (noting survey results). Finally, the trajectory of popular press coverage of the Supreme Court has not shifted-journalists today are no more likely to embrace judicial supremacy than, say, journalists in 1987, when Attorney General Meese ignited a firestorm of criticism by suggesting that Supreme Court decisions were subject to political challenge.
202. See NEAL DEVINS & LOUIS FISHER, THE DEMOCRATIC CONSTITUTION 3, 26-28 (2004) (detailing the academic and journalistic response to Meese).
203. See Evans, supra note 56, at 219-27. For more on why party leaders are especially interested in differentiating themselves this way, see supra note 59, which explains how changes in federal regulation and technology create incentives for political parties to embrace one or another ideological message that will resonate with polarized subsets of the population and not the more moderate median voter.
204. See Paul DiMaggio et al., Have Americans' Social Attitudes Become More Polarized?, 102 AM. J. SOC. 690, 734-38 (1996) (arguing that attitudes of Americans who identify with one or the other political party have become more polarized)
205. Gary C. Jacobson, Party Polarization in National Politics: The Electoral Connection, in POLARIZED POLITICS: CONGRESS AND THE PRESIDENT IN A PARTISAN ERA, 9, 17-18 (Jon R. Bond & Richard Fleisher eds., 2000) (showing that voter views on "hot button" issues increasingly correlate with party identity).
206. See WHITTINGTON, supra note 98, at 135-36
207. Whittington, supra note 117, at 512-15.
208. See Lawrence C. Dodd & Scott Schraufnagel, Reconsidering Party Polarization and Policy Productivity: A Curvilinear Perspective, in CONGRESS RECONSIDERED, supra note 8, at 393, 401-04. Because of supermajority rules in the Senate, Congress-White House deadlock often persists during periods of unified government. During the 108th and 109th Congresses, when Republicans controlled both the White House and Congress (i.e. from 2003 to 2007), 130 motions for cloture were filed, 62 in the 108th and 68 in the 109th.
209. See Senate Action on Cloture Motions, U.S. SENATE, http://www.senate.gov/pagelayout/reference/cloture_motions/clotureCounts.htm (last visited June 3, 2011). During the 110th Congress, under Democratic control, 139 motions for cloture were filed.
210. See ibid. Likewise, in the 111th Congress 136 motions were filed.
211. See ibid. The fact that Democrats had 60 seats during much of this time did not matter.
212. See infra note 215 and accompanying text. Following the 2010 elections, after which Republicans held 47 Senate seats and gained control of the House, there is good reason to think that this pattern of polarized legislative statement will continue.
213. See supra note 84.
214. See supra notes 83-84, 122 and accompanying text
215. see also Neal Devins, Presidential Unilateralism and Political Polarization: Why Today's Congress Lacks the Will and the Way to Stop Presidential Initiatives, 45 WILLAMETTE L. REV. 395 (2009) (contrasting Watergate era to modern era to show that a less polarized Congress can enact major legislation that limits presidential prerogatives)
216. Smith &Gamm, supra note 50, at 161 (discussing the links between partisanship and obstructionism)
217. Barbara Sinclair, Partisan Polarization, Rules and Legislative Productivity 20-22 (Sept. 2009) (paper prepared for delivery at the Annual Meeting of the American Political Science Association), http://ssrn.com/abstract=1450627 (discussing the links between partisanship and decreased legislative productivity).
218. For thirteen of the twenty years between 1990 and 2009, one or the other house of Congress had a majority from a different party than the president.
219. See Dennis Florig, Party Control of Congress and the Presidency, DFLORIG.COM, http://www.dflorig.com/partycontrol.htm (last visited June 3, 2011)
220. see also Neal Devins, Signing Statements and Divided Government, 16 WM. & MARY BILL RTS. J. 63 (2007) (attributing prevalence of divided government to rise in unilateral presidential policymaking).
221. See Mikva, supra note 88, at 609. In making these points, I do not mean to suggest that lawmakers and their constituents always care more about position taking than about potential constitutional roadblocks to the enactment of favored policies. When Congress enacts "son of" legislation that responds to a Supreme Court invalidation of a federal statute, lawmakers often hold hearings to find ways to work within constitutional boundaries set by the Court.
222. See PICKERILL, supra note 89, at 57-61
223. Devins, supra note 102, at 1313-14. Furthermore, congressional action sometimes takes place in the shadow of some Supreme Court decision, forcing lawmakers and interest groups to think of the constitutional implications of their decisions. Here are two examples: When Congress enacted the Federal Partial Birth Abortion Ban Act, lawmakers and their constituents could not ignore the Supreme Court's invalidation of a state partial birth ban, but they could ignore the Court's Commerce Clause rulings that arguably cast doubt on the constitutionality of the partial birth measure.
224. See Neal Devins, How Congress Paved the Way for the Rehnquist Court's Federalism Revival: Lessons from the Federal Partial Birth Abortion Ban, 21 ST. JOHN'S J. LEGAL COMMENT. 461 (2007). The Rehnquist Court's limits on group-conscious remedial legislation also figured into congressional hearings on the 2006 Voting Rights Act reauthorization.
225. See Nathaniel Persily, The Promise and Pitfalls of the New Voting Rights Act, 117 YALE L.J. 174 (2007).
226. See generally Oliver A. Houck, Things Fall Apart: A Constitutional Analysis of Legislative Exclusion, 55 EMORY L.J. 1 (2006) (assessing constitutionality of Congress's recent practice of excluding minority party members from the legislative process). Before party polarization set in, committee chairs would sometimes reach out to the minority in both agenda control and witness selection.
227. See Christine DeGregorio, Leadership Approaches in Congressional Committee Hearings, 45 W. POL. Q. 971, 976-80 (1992).
228. See, e.g., Democrats, White House Step Up Rhetoric on Spying Program, ST. PETERSBURG TIMES, Jan. 21, 2006, at 3A
229. Steven T. Dennis & Liriel Higa, GOP Leaders Drop Drilling Provisions, CQ TODAY, Nov. 10, 2005, at 1
230. Brian Hansen, Democrats Denounce EPA Mercury Rule, Call On Bush Administration to Revise It, INSIDE ENERGY, Apr. 25, 2005, at 5
231. James Pinkerton, Moving from 'Me' to 'We' on Health, CINCINNATI POST, June 23, 2007, at 14A
232. Dick Polman, Most Democrats Keep Quiet- Lawmakers Who Backed War Unable to Use British Memos to Attack Bush, AKRON BEACON J., June 19, 2005, at A13.
233. See supra notes 62-84 and accompanying text.
234. The recent political struggle over national health care reform serves as an illustration. Between President Obama's inauguration and the enactment of H.R. 3590, the Patient Protection and Affordable Care Act, approximately forty-four congressional committee hearings were held primarily to review various aspects of national health care reform. However, none of these hearings focused on the constitutionality of national health care reform as a major topic of discussion. Moreover, only a single witness during these hearings discussed the constitutionality of health care reform legislation at length.
235. See Between You and Your Doctor: The Bureaucracy of Private Health Insurance: Hearing Before the Subcomm. on Domestic Policy of the H. Comm. on Oversight and Gov't Reform, 111th Cong. (2009), video available at http://www.youtube.com/watch?v=HkIv9nt_F2g (testimony of Michael F. Cannon, Director of Health Policy Studies, Cato Institute) (positing that the U.S. Constitution's General Welfare Clause should not be expansively interpreted to incorporate national health care reform). Therefore, the Democratic-controlled 111th Congress chose not to perform in-depth hearings on the possible constitutional problems involved with national health care reform.
236. With congressional committee hearings essentially closed off to debate regarding the constitutionality of national health care reform, Republicans turned to the floors of the U.S. House and Senate to voice their objections. During the same time frame, eighty-eight pages of congressional floor debates discussed the constitutional questions surrounding national health care reform. All objections to the constitutionality of national health care reform were raised by Republicans during these debates. See, e.g., 156 CONG. REC. H177-83 (daily ed. Jan. 19, 2010) (statements of Reps. Garrett, Foxx, Broun, Gohmert, and Bishop)
237. 155 CONG. REC. S13,821-29 (daily ed. Dec. 23, 2009) (statements of Sens. Hutchinson, Ensign, Hatch, and Kyl)
238. 155 CONG. REC. H12,429 (daily ed. Nov. 5, 2009) (statement of Rep. Poe).
239. After Republicans took over the House of Representatives in 2011, it seemed likely that Republican leadership would convene hearings to challenge the underlying constitutionality of health care reform. During the 2010 election campaign, Republican leadership questioned the constitutionality of health care reform and embraced a proposal to require every bill to include language citing its constitutional authority.
240. See Jake Sherman & Richard E. Cohen, Republicans to Release 'Contract with America'Style Election Agenda, POLITICO (Sept. 17, 2010, 9:37 AM), http://www.politico.com/news/stories/ 0910/42302.html. At that time, House Minority Leader John Boehner blogged that "[t]he centerpiece of ObamaCare is a constitutionally suspect 'individual mandate'" and that a requirement that all bills cite specific constitutional authority could create a valuable "obstacle to expanded government."
241. See House Republicans Want All Bills to Cite Constitutional Authority, FOX NEWS (Sept. 17, 2010), http://www.foxnews.com/politics/2010/09/17/house-republicans-want-bills-cite-constitutional-authority. House Minority Whip Eric Cantor embraced the requirement for similar reasons.
242. See ibid. Following the 2010 elections, Republican leadership made clear that it intended to pursue its campaign to dismantle health care reform.
243. See Noam Levy, Republicans Are Spoiling for a Health Care Fight, L.A. TIMES, Nov. 15, 2010, at A1. For additional discussion
244. see infra notes 208-14 and accompanying text.
245. One other factor, suggested to me by Mitch Pickerill, is that congressional committee hearings are impacted by the increasing volume of legislation that needs to be reauthorized and, more generally, by the growth of the administrative state. Specifically, if committee business is increasingly defined by the need to reauthorize and oversee federal programs, committees will simply have less time to pursue the types of issues that are likely to implicate the Constitution. Pickerill's suggestion is indirectly supported by studies on committee jurisdiction. One prominent study, for example, shows that Congress must deal with more and more issues so that the jurisdiction of individual committees becomes denser.
246. See Frank R. Baumgartner et al., The Evolution of Legislative Jurisdictions, 62 J. POL. 321 (2000). With more issues on their respective plates, it is understandable that committees would push aside secondorder concerns.
247. See supra Figures 1 & 2.
248. For the Judiciary Committees, of course, relevant interest group constituents care intensely about policy issues that are inextricably constitutional issues, such as abortion and gun rights. For additional discussion, see infra Part III.
249. During the Alito confirmation hearing, for example, Democratic senators spoke at length about abortion, voting rights, the use of torture in fighting the War on Terror, and federalism-based limits on Congress's power to enact antidiscrimination legislation. Adam Nagourney, Partisan Tenor of Alito Hearing Reflects a Quick Change in Washington, N.Y. TIMES, Jan. 10, 2006, at A17. Likewise, Democratic senators emphasized abortion and civil rights in the Roberts confirmation hearing.
250. Robin Toner & David D. Kirkpatrick, Liberals and Conservatives Remain Worlds Apart on Roberts's Suitability, N.Y. TIMES, Sept. 16, 2005, at A22.
251. See Devins, supra note 113, at 1354-58
252. Sam Rosenfeld, Disorder in the Court, AM. PROSPECT (June 19, 2005), http://prospect.org/cs/articles?article=disorder_in_the_court. Republicans have also championed numerous structural reforms-most notably, the 1994 Contract with America included provisions on term limits, the line-item veto, and unfunded mandates.
253. See Whittington, Devins & Hicken, supra note 2, at 402.
254. See FRANK R. BAUMGARTNER & BRYAN D. JONES, AGENDAS AND INSTABILITY IN AMERICAN POLITICS 144-48 (1993).
255. See ibid. at 254
256. see also Policy Agendas Project, COLL. OF LIBERAL ARTS, UNIV. OF TEX. AT AUSTIN, http://www.policyagendas.org/page/trend-analysis (last visited June 3, 2011). Furthermore, when pursuing first-order economic or social reform, majority party lawmakers may ignore the constitutional implications of their handiwork. For example, as discussed supra note 129, Democratic lawmakers largely ignored potential constitutional objections, like federalism concerns, to the recently enacted health care legislation, preferring, instead, to focus on the policy aspects of the bill. Moreover, party polarization reinforces the dominion of economic, not social, issues on the national policy agenda. For reasons identified supra notes 77-78 and accompanying text, party leaders seek roll call votes on economic issues that are likely to expose divisions between the two parties. In this way, party polarization is a vicious cycle. Party leaders have more power in a polarized Congress and have incentive to pursue roll call votes on issues that strengthen party polarization.
257. See supra Part II.A and accompanying text (explaining how party leaders have greater power when there is an ideological divide between the parties). Consequently, it is hardly surprising that the national agenda gravitates toward economic matters that divide the parties.
258. See supra Figure 2.
259. Because Congress holds a fairly small number of constitutional hearings, a spike may also be the byproduct of the convergence of several unrelated constitutional issues being considered at the same time. In other words, there may be a spike in constitutional hearings that is not tied to an obvious trigger (change in policy agenda or leadership, a controversial court ruling, etc.). In 1977, for example, the House and Senate each held an above-average number of constitutional hearings. See supra Figure 1. This spike had nothing to do with the shift from divided government under President Ford, a Republican, to unified government under President Carter, a Democrat. Instead, the spike reflected the confluence of several general agenda items being considered at the same time. Constitutional issues discussed in 1977 included D.C. statehood, the decriminalization of marijuana, and civil rights for institutionalized persons.
260. See, e.g., Representation for the District of Columbia: Hearing on H.J. Res. 139, 142, 392, 554, and 565 Before the Subcomm. on Civil and Constitutional Rights of the H. Comm. on the Judiciary, 95th Cong. (1977)
261. Decriminalization of Marihuana: Hearing on H.R. 432 Before the H. Select Comm. on Narcotics Abuse and Control, 95th Cong. (1977)
262. Civil Rights of Institutionalized Persons: Hearing on S. 1393 and H.R. 2439 Before the Subcomm. on the Constitution of the S. Comm. on the Judiciary, 95th Cong. (1977).
263. For a complete listing of 1977 hearings, visit PROQUEST CONGRESSIONAL, https://web.lexis-nexis.com/congcomp, search "constitution!" in subject term for the date range January 1, 1977, through December 31, 1977, and examine archive entries.
264. In discussing these triggers, I call attention to various instances where today's polarized Congress was presented with opportunities to tackle one constitutional issue or another. This discussion makes clear that there were numerous opportunities for Congress to play an active role in interpreting the Constitution-ranging from responses to the Rehnquist Court's invalidation of federal statutes to unilateral presidential warmaking.
265. See infra notes 144-70170 and accompanying text
266. see also Michael J. Gerhardt, Judging Congress, 89 B.U. L. REV. 525, 530-31 (2009) (providing past examples of Court decisions, changes in the composition of the Supreme Court, and presidential initiatives that triggered constitutional activity in Congress).
267. PICKERILL, supra note 89, at 42-43. And although Congress may not have held constitutional hearings each time it responded to a judicial invalidation, I would think that several, if not most, of these statutory invalidations triggered a hearing-both to provide interest groups with an opportunity to testify and to inform committee members and staff of the best way to navigate around an unfavorable Court ruling.
268. Ibid.
269. Whittington, supra note 9, at 95. For slightly updated data
270. see Whittington, Devins & Hicken, supra note 2, at 408.
271. See supra notes 115-18 and accompanying text.
272. See Barry Friedman & Anna L. Harvey, Electing the Supreme Court, 78 IND. L.J. 123 (2003). In sharp contrast, Democratic lawmakers claimed that the Court engaged in "conservative judicial activism"; if Democrats had controlled Congress, it seems likely that they would have held constitutional hearings to make their case against the Court.
273. See Devins, supra note 102, at 1325-35 (describing and analyzing Democratic claims).
274. See PICKERILL, supra note 89, at 148-49
275. Devins, supra note 102, at 1318-23.
276. See Whittington, supra note 117, at 511-16. In sharp contrast, Warren Court decisionmaking threatened lawmaker preferences in a more fundamental way. Perhaps for this reason, 40% of lawmakers in 1959 thought that the Supreme Court should treat congressional constitutional interpretations as controlling, a stark contrast to the mere 14% of congressmen in 1999 who thought this.
277. See Peabody, supra note 109, at 147 (contrasting 1959 and 1999 survey data).
278. To make this point more concrete, let me highlight a counterexample of today's Congress holding constitutional hearings in order to comply with Supreme Court dictates. When reauthorizing the Voting Rights Act in 2006, lawmakers took into account Rehnquist Court decisions governing Congress's authority to enact remedial race-conscious legislation.
279. See Persily, supra note 125, at 252-53. Were the Supreme Court to place comparable constraints on other exercises of congressional power, Congress might be compelled to hold constitutional hearings on a broad range of issues or, alternatively, to hold constitutional hearings as part of a broader effort to force the Court to change its doctrine.
280. See Neal Devins, The Judicial Safeguards of Federalism, 99 NW. U. L. REV. 131 (2004).
281. See generally Devins, supra note 113 (explaining why Republican attacks on the judiciary in 2006 and 2007 did not threaten judicial independence).
282. For an instructive though one-sided treatment of the politics of Republican attacks on the courts, see Rosenfeld, supra note 134.
283. 545 U.S. 469 (2005). Kelo-related hearings include H.R. 3405, Strengthening the Ownership of Private Property Act of 2005 (STOPP): Hearing on H.R. 3405 Before the H. Comm. on Res., 109th Cong. (2005)
284. Protecting Property Rights After Kelo: Hearing Before the Subcomm. on Commerce, Trade, and Consumer Protection of the H. Comm. on Energy and Commerce, 109th Cong. (2005)
285. Supreme Court's Kelo Decision and Potential Congressional Responses: Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th Cong. (2005)
286. The Kelo Decision: Investigating Takings of Homes and Other Private Property: Hearing Before the S. Comm. on the Judiciary, 109th Cong. (2005)
287. Kelo v. City of New London U.S. Supreme Court Decision and Strengthening the Ownership of Private Property Act of 2005: Hearing on H.R. 3405 Before the H. Comm. on Agric., 109th Cong. (2005)
288. and Eminent Domain: Are Ohio Homeowners at Risk?: Hearing Before the Subcomm. on Hous. and Cmty. Opportunity of the H. Comm. on Fin. Servs., 109th Cong. (2005).
289. After the Supreme Court's decision to strike down a major section of 2002 campaign finance reform law in Citizens United v. FEC, 130 S. Ct. 876 (2010), Democratic Party politicians immediately expressed their disapproval with the case's outcome.
290. See Russ Feingold, High Court Opens the Floodgates, USA TODAY, Jan. 22, 2010, at 9A
291. Daniel Malloy & Bill Toland, Court Lets Corporations Dip into Politics, PITTSBURGH POST-GAZETTE, Jan. 22, 2010, at A1
292. Jared Polis, Politics and Corporate Personhood, DENVER POST, Feb. 19, 2010, at B11
293. David G. Savage, Campaign Cash Limits Lifted, CHI. TRIB., Jan. 22, 2010, at C12. And through congressional hearings, Democratic Party committee chairs were able to bring forth multiple witnesses whose testimony critiqued the Court's decision and advocated new campaign finance reform legislation. With the exception of Ted Olson, the lawyer who argued Citizens United, no witness defended the decision, and no witness claimed that the decision could only be overturned through a constitutional amendment.
294. See H.R. 5175, The Disclose Act, Democracy Is Strengthened by Casting Light on Spending in Elections: Hearing Before the H. Comm. On H. Admin., 111th Cong. (2010) (statement of Theodore B. Olson)
295. see also We the People? Corporate Spending in American Elections After Citizens United: Hearing Before the S. Comm. on the Judiciary, 111th Cong. (2010)
296. First Amendment and Campaign Finance Reform After Citizens United: Hearing Before the Subcomm. on the Constitution, Civil Rights, and Civil Liberties of the H. Comm. on the Judiciary, 111th Cong. (2010)
297. Corporate America vs. the Voter: Examining the Supreme Court's Decision to Allow Unlimited Corporate Spending in Elections: Hearing Before the S. Comm. on Rules and Admin., 111th Cong. (2010).
298. This applies both to Court invalidations of federal statutes and consequential Supreme Court decisions (measured by front-page New York Times coverage).
299. Whittington, Devins & Hicken, supra note 2, at 397.
300. See supra note 23.
301. See Devins, supra note 123, at 406-15 (linking party polarization to the growth of presidential power)
302. see also Moe & Howell, supra note 104, at 143-48 (explaining why lawmakers have little interest in preserving, let alone expanding, Congress's institutional prerogatives). On questions of constitutional interpretation, especially on the separation of powers, the gap between presidential incentives to advance a coherent pro-president agenda and congressional incentives to advance a pro-Congress agenda are striking.
303. See Moe & Howell, supra note 104, at 136-38. Presidents, for example, typically back the efforts of the Department of Justice to coordinate legal policymaking, a department whose Offices of Legal Counsel and Solicitor General have strong incentives to ensure uniformity in the legal positions of the Executive Branch.
304. See Neal Devins & Michael Herz, The Battle That Never Was: Congress, the White House, and Agency Litigation Authority, 61 LAW & CONTEMP. PROBS. 205, 219-20 (1998).
305. For its part, Congress has no incentive to break up this Department of Justice monopoly on legal policymaking.
306. See ibid. at 206-07. Instead, in an era of declining congressional interest in abstract questions of constitutional law, lawmakers play a limited, largely reactive role to presidential constitutional interpretations. In particular, in periods of divided government, majority party lawmakers sometimes use hearings to question the constitutionality of presidential initiatives. supra note 40. In other words, although lawmakers have not ceded the power of constitutional interpretation to the Justice Department, lawmakers lack the incentive to systematically advance their own theory of constitutional interpretation.
307. See LOUIS FISHER, PRESIDENTIAL WAR POWER 261 (rev. 2d ed. 2004). Perhaps for this reason, today's lawmakers are far less interested in serving on the Senate Foreign Relations and Armed Services Committees.
308. See Linda L. Fowler & R. Brian Law, Seen but Not Heard: Committee Visibility and Institutional Change in the Senate National Security Committees, 1947-2006, 33 LEGIS. STUD. Q. 357-381 (2008).
309. See WILLIAM G. HOWELL, POWER WITHOUT PERSUASION: THE POLITICS OF DIRECT PRESIDENTIAL ACTION 112-20 (2003) (discussing the rise of unilateral presidential policymaking)
310. see also Devins, supra note 123, at 406-15 (explaining why today's lawmakers lack the will or way to check presidential unilateralism).
311. See Devins, supra note 123, at 413-15
312. Moe & Howell, supra note 104, at 144-45. Even when a change in party leadership results in divided government, lawmakers use hearings to strengthen their party's message, not the broader powers of Congress. In particular, party leaders are unwilling to trade off the immediate needs of their party in favor of institutional reforms that are unlikely to be enacted because of delaying techniques and that may cut against their party's interests if the opposition party were to regain control of Congress. Consider, for example, the 1995 Republican takeover and the 2007 Democratic takeover. In 1995, Republicans sought to diminish legislative power by pursuing Contract with America reforms that shifted power to the states. In 2007, Democrats sought to embarrass the Bush Administration through oversight hearings that did not seek to shift power away from the President to the Congress.
313. See supra note 40
314. infra note 160.
315. See supra note 104 and accompanying text. In today's polarized Congress, one would think that constitutional hearings might increase when the government was divided-so that the majority in Congress could use hearings to challenge the constitutionality of presidential actions. Yet overall patterns of constitutional hearings suggest no meaningful differences between unified and divided government.
316. See supra notes 26-29 and accompanying text. For example, the 1995 spike in House constitutional hearings seems tied to the Republican pursuit of Contract with America reforms, not the shift to divided government.
317. See supra notes 30-34 and accompanying text. Also, the 2007 Democratic takeover of Congress did not spur on an increase in constitutional hearings.
318. See supra Figure 1. Thus, even though Congress does hold noticeably more oversight hearings when the government is divided, it appears that constitutional questions are not regularly pursued in these hearings.
319. See Somin & Devins, supra note 40, at 986-87 (noting patterns in lawmaker oversight during periods of unified and divided government). Of course, that is not to say that majority party lawmakers never use oversight hearings to cast doubt on the constitutionality of presidential initiatives during periods of divided government. After the Democratic takeover of Congress in 2007, for example, lawmakers planned to step up their oversight of President Bush's enemy combatant initiatives.
320. See Seth Stern, The House Committees: Judiciary, 64 CQ WKLY. 3001, 3001 (2006).
321. David W. Rohde et al., Dynamic Congressional Organization: A Theory of Institutional Stability and Reform 13 (Mar. 30, 2009) (unpublished manuscript prepared for the Sixty-Seventh Annual National Conference of the Midwest Political Science Association) (on file with the Northwestern University Law Review).
322. See supra notes 68-74 and accompanying text.
323. See Whittington, supra note 9, at 93-95.
324. See Constitutional Amendments Relating to Abortion: Hearing on S.J. Res. 17, S.J. Res. 18, S.J. Res. 19, and S.J. Res. 110 Before the Subcomm. on the Constitution of the S. Comm. on the Judiciary, 97th Cong. (1981)
325. Firearms Owner Protection Act: Hearings on S. 1030 Before the S. Comm. on the Judiciary, 97th Cong. (1981)
326. Federal Tort Claims Act: Hearing on S. 1775 Before the Subcomm. on Agency Admin. of the S. Comm. on the Judiciary, 97th Cong. (1981)
327. Court-Ordered School Busing: Hearings on S. 528, S. 1005, S. 1147, S. 1647, S. 1743, and S. 1760 Before the Subcomm. on Separation of Powers of the S. Comm. on the Judiciary, 97th Cong. (1981)
328. Affirmative Action and Equal Protection: Hearings on S.J. Res. 41 Before the Subcomm. on the Constitution of the S. Comm. on the Judiciary, 97th Cong. (1981)
329. Tuition Tax Credits: Hearings on S. 550 Before the Subcomm. on Taxation and Debt Mgmt. of the S. Comm. on Fin., 97th Cong. (1981).
330. See supra Figures 1 & 3. In the 2010 campaign, which resulted in a Republican majority in the House, Republicans ran on an agenda that sought to limit the scope of federal governmental programs, most notably health care.
331. See supra note 129
332. see infra notes 208-14214. And although House Republicans might hold hearings on the constitutional foundations of health care reform and other governmental programs, there is reason to think that constitutional issues will not play a prominent role in the House Republican agenda.
333. See infra notes 208-14214 and accompanying text. Democrats did centralize power in newly elected House Speaker Nancy Pelosi.
334. See Aldrich & Rohde, supra note 8, at 234-37
335. Rohde et al., supra note 161, at 28-31. Pelosi, moreover, sidestepped the committee system when she exercised power, bypassing committees altogether to force votes on six bills that party leadership had identified as priority items.
336. See Rohde et al., supra note 161, at 29.
337. For a general treatment of how party polarization impacted witness lists and other aspects of constitutional hearings
338. see Devins, supra note 7, at 1543-45, which compares preand post-1985 practices. By highlighting the increasing partisan nature of committee hearings, I do not mean to suggest that academic witnesses either lack expertise or craft their testimony to match the stated preferences of the political party that asks them to testify. My point, instead, is that committee staff members ensure that the witnesses the committee calls will testify in ways that support the majority's preferences.
339. Party polarization has also impacted the number of constitutional confirmation hearings held by the Senate Judiciary Committee. In particular, polarization has resulted in the Senate Judiciary Committee spending more and more time on the confirmation hearings of federal appeals court judges. See infra note 201 (detailing and examining the increase in the number of constitutional confirmation hearings in the Senate Judiciary Committee). For additional discussion
340. see infra note 171.
341. See Devins, supra note 113
342. Rosenfeld, supra note 134. For additional discussion
343. see infra note 200 and accompanying text.
344. See infra notes 171-172
345. see also Judiciary Committee Votes on Recent Supreme Court Nominees, U.S. SENATE COMM. ON THE JUDICIARY, http://judiciary.senate.gov/nominations/SupremeCourt/CommitteeVotes.cfm (last visited June 3, 2011) (recording committee votes on Supreme Court nominations dating back to 1971).
346. From 1970 until the 1987 confirmation hearing for Robert Bork, the Senate unanimously approved the nominations of Justices Stevens, O'Connor, and Scalia following the 1995 Republican takeover of Congress, the committee has sharply divided along party lines. See Supreme Court Nominations, Present-1798, U.S. SENATE, http://www.senate.gov/pagelayout/reference/nominations/Nominations.htm (last visited June 3, 2011). Votes on Chief Justice Roberts and Justices Alito and Sotomayor were largely along party lines.
347. See ibid.
348. see also Abramowitz, supra note 56, at 32-33 (noting rise of party-line voting in the Senate)
349. Sarah A. Binder & Forrest Maltzman, The Politics of Advice and Consent: Putting Judges on the Federal Bench, in CONGRESS RECONSIDERED, supra note 8, at 241 (attributing changes in Senate judicial confirmation practices to, among other things, party polarization).
350. MICHAEL J. GERHARDT, THE FEDERAL IMPEACHMENT PROCESS: A CONSTITUTIONAL AND HISTORICAL ANALYSIS 193 (2d ed. 2000). In the Clinton case, the House Judiciary Committee cast party-line votes. In the Nixon case, six Judiciary Committee Republicans joined Democrats in voting for articles of impeachment.
351. Richard K. Neumann Jr., The Revival of Impeachment as a Partisan Political Weapon, 34 HASTINGS CONST. L.Q. 161, 255 (2007). After the release of the Watergate tapes, all but one Judiciary Committee Republican supported articles of impeachment.
352. Ibid. at 256.
353. See infra notes 186-89189 and accompanying text.
354. See infra notes 198-200 and accompanying text.
355. See CONSTITUTION, JEFFERSON'S MANUAL, AND RULES OF THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES ONE HUNDRED ELEVENTH CONGRESS, H.R. DOC. NO. 110-162, at 451-52 (2009) (House Rule X(1)(k)); U.S. SENATE COMM. ON RULES & ADMIN., SENATE MANUAL, S. DOC. NO. 1101, at 34 (2008) (Senate Rule XXV(1)(m)).
356. See supra Figures 9-12. Although my analysis focuses on the reasons that the Judiciary Committees are especially likely to hold constitutional hearings, I also recognize that committee leaders sometimes purposefully keep an issue off the committee's docket. For example, throughout the 1970s and 1980s, the House Judiciary Committee "became known as the graveyard for social conservative initiatives." MARK C. MILLER, THE VIEW OF THE COURTS FROM THE HILL: INTERACTIONS BETWEEN CONGRESS AND THE FEDERAL JUDICIARY 136 (2009). At that time, Democratic leadership made sure that committee members "would kill constitutional amendments and other measures desired by conservatives on such subjects as school prayer, abortion, budget procedures, and term limits."
357. Roger H. Davidson, The Lawmaking Congress, 56 LAW & CONTEMP. PROBS. 99, 107 (1993).
358. See DEERING & SMITH supra note 68, at 60-62
359. FENNO, supra note 85, at 1.
360. DEERING & SMITH, supra note 68, at 72.
361. Lynette P. Perkins, Member Recruitment to a Mixed Goal Committee: The House Judiciary Committee, 43 J. POL. 348, 353-56 (1981).
362. Roger H. Davidson, What Judges Ought to Know About Lawmaking in Congress, in JUDGES AND LEGISLATORS: TOWARD INSTITUTIONAL COMITY 90, 104 (Robert A. Katzmann ed., 1988)
363. see also DEERING &SMITH, supra note 68, at 88-91 (noting that the jurisdiction of the Judiciary Committees is highly fragmented).
364. DEERING &SMITH, supra note 68, at 91-93.
365. Ibid. at 93-96.
366. See MILLER, supra note 176, at 135 ("The House Judiciary Committee used to be known as the 'Committee of Lawyers.'").
367. Mark C. Miller, Congressional Committees and the Federal Courts: A Neo-institutional Perspective, 45 W. POL. Q. 949, 961 (1992).
368. See DEERING &SMITH, supra note 68, at 73
369. Lynette P. Perkins, Influences of Members' Goals on Their Committee Behavior: The U.S. House Judiciary Committee, 5 LEGIS. STUD. Q. 373, 377-83 (1980).
370. DAVIDSON &OLESZEK, supra note 16, at 219.
371. Davidson, supra note 180, at 105.
372. Perkins, supra note 179, at 349. For this very reason, many senators do not want to serve on the Judiciary Committee.
373. See DEERING & SMITH, supra note 68, at 82.
374. Correspondingly, the Judiciary Committees, unlike other committees, are more likely to put social issues at the front of their agendas even though the national policy agenda typically focuses on economic issues.
375. See supra notes 135-36136 and accompanying text (discussing predominance of economic issues in national policy agenda).
376. MILLER, supra note 176, at 136
377. see DEERING &SMITH, supra note 68, at 73.
378. In an effort to recruit House Democrats to serve on the Judiciary Committee, for example, Democratic leadership granted waivers to committee members so that service on the Judiciary Committees would not count against a committee member's ability to serve on other committees. For an example of this practice
379. see Press Release, Congressman Artur Davis, Congressman Artur Davis Newly Appointed to House Administration Committee (May 3, 2007), available at http://web.archive.org/web/20090503110207/http://www.house.gov/apps/list/press/al07_davis/houseadmin050307.html (accessed by searching the Internet Archive index). Perhaps for this reason, Democrats serving on the House Judiciary Committee during the George W. Bush era are somewhat closer to the party median-especially compared to far-right Republicans who served on the Committee with them.
380. See Memorandum from Nick Cumings to author (Nov. 15, 2009) (on file with the Northwestern University Law Review) (detailing distance between party medians and Judiciary Committee members).
381. See SCOTT A. FRISCH & SEAN Q. KELLY, COMMITTEE ASSIGNMENT POLITICS IN THE U.S. HOUSE OF REPRESENTATIVES 107 (2006)
382. MILLER, supra note 176, at 136-37. Not surprisingly, House Republicans on the Judiciary Committee during George W. Bush's Administration were at the far right of their party.
383. See Memorandum from Nick Cumings to author, supra note 191, at 2. For additional discussion on the ties between Republicans on the House Judiciary Committee and so0cial conservative interest groups
384. see Devins, supra note 113, and Rosenfeld, supra note 134.
385. See MILLER, supra note 176, at 95
386. Devins, supra note 113, at 1355 (tying jurisdiction-stripping measures to social conservative goals)
387. Rosenfeld, supra note 134 (connecting opposition to judicial activism and support for jurisdictional limits to the Christian Right and the Republican Party).
388. MILLER, supra note 176, at 147
389. see also ibid. at 142-52 (discussing how changes in the institutional culture of the House Judiciary Committee affect the Judicial Branch). Against this backdrop, there is reason to question the Judiciary Committees' reputation for caring about whether the Supreme Court will uphold the Committees' handiwork. Instead, it may be that party polarization has transformed committee attitudes toward the courts. For a discussion of earlier committee practices
390. see Mark C. Miller, Congress and the Constitution: A Tale of Two Committees, 3 SETON HALL CONST. L.J. 317 (1993). In this article, Miller details differences between the House Judiciary and the House Energy and Commerce Committees in their respective handling of legislation that was likely to be challenged on constitutional grounds-finding that the Energy and Commerce Committees were uninterested in potential constitutional challenges and that the Judiciary Committee was very much concerned about such challenges.
391. See ibid. at 327-36.
392. See DAVIDSON &OLESZEK, supra note 16, at 379-87
393. Binder & Maltzmann, supra note 171, at 242. Another measure of the increasing importance of federal court of appeals nominations to the work of the Senate Judiciary Committee is the fact that, from 1970 to 1989, the first half of this study, the Committee held 31 constitutionally related confirmation hearings on court of appeals nominees. From 1990 to 2009, though, the Committee held 61 such hearings. This number was calculated by using the electronic version of the CIS index available through LexisNexis. For additional discussion of the search methodology
394. see supra notes 21-22 and accompanying text. William and Mary reference librarian Paul Hellyer and I searched the CIS index for "judiciary and senate" in the "congressional source" field, "(court of appeals or circuit) and (nominat! or confirm!)" in the "all fields except full text" field, and "ATLEAST10(constitution or constitutional)" in the "all fields including full text" field. False hits were then excluded. With respect to other confirmation hearings held by Senate Judiciary, we conducted a similar search. We searched for "judiciary and senate" in the "congressional source" field, "nominat! or confirm!" in the "all fields except full text" field, and "ATLEAST10(constitution or constitutional)" in the "all fields including full text" field. From this larger subset, we excluded false hits and federal court of appeals nominations. The numbers were stable between the two periods-44 for the 1970-1989 period and 38 for the 1990-2009 period, further highlighting the dramatic changes in federal court of appeals confirmation hearings, changes which can be attributed to increasing polarization between the parties. We also conducted another search, referenced supra note 16, looking at constitutional confirmation hearings throughout the Senate and comparing the number of hearings in and outside the Judiciary Committees. We did this by searching for "nominat! or confirm!" in the "all fields except full text" field and "ATLEAST10(constitution or constitutional)" in the "all fields including full text" field. After reviewing the results and excluding false hits and Senate Judiciary Committee confirmation hearings, we identified the number of constitutional confirmation hearings outside of the Judiciary Committee. These numbers support the claim that today's congressional committees, other than the Judiciary Committee, are less engaged in constitutional questions. There were 72 constitutional confirmation hearings outside of Judiciary in the period from 1970 to 1989 and 39 in the period from 1990 to 2009. The number of confirmation hearings held by the Senate Judiciary Committee also increased from 75 in the period from 1970 through 1989 to 99 in the period from 1990 through 2009.
395. Changes in Senate practices in confirming lower federal court judges, however, do not explain Senate Judiciary Committee preeminence in holding constitutional hearings. This preeminence is largely attributable to the dramatic downswing in constitutional hearings by other congressional committees.
396. See supra Figures 1 & 2 (highlighting overall decline in number and percentage of constitutional hearings). Moreover, for reasons identified supra note 22, several appellate court confirmation hearings did not show up in our data set, which suggests that the Senate Judiciary Committee's dominance is not linked to these confirmation hearings. Moreover, even though the number of appeals court constitutional hearings doubled in the second half of this study, the average number of those hearings per year is fairly low: the number doubled from 1.5 per year to 3 per year.
397. See Binder &Maltzman, supra note 171, at 256-57 (noting that Democrats made scrutiny of judicial nominees a caucus priority in 2003). During the George W. Bush Administration, Democrats on the Senate Judiciary Committee saw judicial nominations as an ideological battle, and perhaps for this reason, the median Democrat on the Committee moved further and further to the left during the George W. Bush Administration.
398. See Memorandum from Nick Cumings to author, supra note 191, at 1 (demonstrating this trend).
399. Ever since the hearings on Robert Bork's nomination to the Supreme Court in 1987, media coverage of Supreme Court confirmations has increased roughly 38%, making the Senate Judiciary Committee an especially attractive committee for members interested in reaching out to their constituents through media coverage.
400. See RICHARD DAVIS, ELECTING JUSTICE: FIXING THE SUPREME COURT NOMINATION PROCESS 98 (2005). Yet given the divisive issues faced by the Senate Judiciary Committee, the Committee typically attracts members who can safely stake out positions on these highly charged issues.
401. See DEERING &SMITH, supra note 68, at 74-77, 84-86 (noting that the work of constituent committees is inextricably linked to the interests of the districts and states that elect constituent committee members to Congress).
402. These groups included the National Women's Law Center, the NAACP Legal Defense and Educational Fund, and the National Abortion Rights Action League.
403. See Gregory A. Caldeira & John R. Wright, Lobbying for Justice: Organized Interests, Supreme Court Nominations, and the United States Senate, 42 AM. J. POL. SCI. 499-504 (1998). For additional discussion of the Bork confirmation
404. see generally BRONNER, supra note 23, and MARK GITENSTEIN, MATTERS OF PRINCIPLE: AN INSIDER'S ACCOUNT OF AMERICA'S REJECTION OF ROBERT BORK'S NOMINATION TO THE SUPREME COURT (1992). The 2006 Voting Rights Act Reauthorization is another example of left-leaning interest groups pushing for Senate Judiciary Committee hearings.
405. See Persily, supra note 125, at 195 n.79.
406. See Devins, supra note 113, at 1355-58
407. Rosenfeld, supra note 134.
408. For discussions of this kind of shift, see Stern, supra note 160
409. and Keith Perine, The Senate Committees: Judiciary, 64 CQ WKLY. 3034, 3034 (2006). Since Republicans gained control of the House in 2011, there is good reason to think that abortion, immigration, and other issues salient to social conservatives will again dominate House Judiciary constitutional hearings.
410. See Robert Pear, Push for Stricter Abortion Limits Is Expected in House, N.Y. TIMES, Dec. 12, 2010, at A34
411. Jennifer Steinhauer, Republicans Name Leaders of House Committees, N.Y. TIMES, Dec. 9, 2010, at A38.
412. See supra notes 190-91191 and accompanying text (noting reluctance of House Democrats to serve on the Judiciary Committee during Republican presidencies).
413. Some of these triggers are linked to party polarization. For example, the national policy agenda may well be tied to the incentives of party leaders to take roll call votes on the very issues that divide the parties. See supra notes 77-78 and accompanying text.
414. See supra note 90 and accompanying text
415. see also Neal Devins, Congress as Culprit: How Lawmakers Spurred On the Court's Anti-Congress Crusade, 51 DUKE L.J. 435, 441-47 (2001) (identifying ways in which Congress signaled to the Rehnquist Court that it would acquiesce to Court invalidations of federal statutes).
416. Before the 2010 elections, there was reason to suspect that the ideological distance between the Roberts Court and the Democratic Congress might have frustrated lawmaker preferences in ways that would trigger constitutional hearings. The Roberts Court, after all, is especially conservative; the Democratic Congress was far more liberal than the Republican Congresses that witnessed the Rehnquist Court's revival of federalism and, with it, the invalidation of progressive legislation.
417. See Adam Liptak, Court Under Roberts Is Most Conservative in Decades, N.Y. TIMES, July 25, 2010, at A1
418. see supra note 144 and accompanying text (noting that Rehnquist Court's invalidation of federal statutes may have matched preferences of sitting Congress). Indeed, President Obama invited a Court-Congress confrontation by calling for legislation overturning the Citizens United ruling.
419. See Michael D. Shear, Obama Calls Citizens United Ruling 'A Huge Blow,' WASH. POST (May 1, 2010, 6:00 AM), http://voices.washingtonpost.com/44/2010/05/obama-calls-citizens-united-ru.html. Notwithstanding
420. Citizens United, the Roberts Court has largely operated within bounds acceptable to Congress and the American people.
421. See Dahlia Lithwick, Spoonfuls of Sugar, SLATE (Sept. 26, 2009, 7:36 AM), http://www.slate.com/id/2229517/ (bemoaning public support of Roberts Court). At the end of the 2009-2010 Supreme Court Term, the conflict over the Court's invalidation of campaign finance legislation in Citizens United stands alone as a point of friction between the Court and Congress.
422. See supra note 150 and accompanying text. Otherwise, the Roberts Court has sidestepped direct confrontations with Congress. In 2008, for example, the Court employed the doctrine of constitutional avoidance to steer clear of a constitutional challenge to the Voting Rights Act reauthorization.
423. See Nw. Austin Mun. Util. Dist. No. One v. Holder, 129 S. Ct. 2504 (2009). In so doing, the Court signaled its desire to avoid triggering a political maelstrom by invalidating the reauthorization.
424. See Barry Friedman, Benched: Why the Supreme Court Is Irrelevant, NEW REPUBLIC, Sept. 23, 2009, at 8-9
425. Jack Balkin, Why Has the Roberts Court Suddenly Gone Minimalist?, BALKINIZATION (June 29, 2009, 3:50 PM), http://balkin.blogspot.com/2009/06/why-has-roberts-court-gone-minimalist.html. For a competing perspective
426. see Jeffrey Rosen, Roberts Versus Roberts, NEW REPUBLIC, Mar. 11, 2010, at 17-18, which suggests that Chief Justice Roberts is prepared to strike down the Voting Rights Act
427. and also see Neal Devins, Talk Loudly and Carry a Small Stick: The Supreme Court and Enemy Combatants, 12 U. PA. J. CONST. L. 491 (2009), which details how the Roberts Court's invalidation of the Military Commission Act tracked lawmaker preferences.
428. See supra Figures 3, 5, 6 & 7. One possible explanation for this phenomenon is that political polarization has impacted the relationship between interest groups and congressional committees. The Constitution arguably plays a stronger role in the social conservative agenda than it does in the civil rights agenda-so that Republicans will hold hearings on jurisdiction-stripping proposals whereas Democrats will seek to amend federal statutes governing employment discrimination, housing discrimination, and the like. Along these lines, it is quite relevant that, since the 2007 Democratic takeover of Congress, the Roberts Court has yet to meaningfully frustrate the first-order policy preferences of Democratic interest group constituents. See supra note 205.
429. See supra Figure 1.
430. Republicans also gained seats in the Senate, strengthening their power to filibuster and otherwise block legislation. But Democrats are still the majority and therefore retain the agenda-setting power in the Senate including the power to decide whether to hold hearings and whether and which constitutional witnesses should testify at hearings.
431. See supra note 129 (discussing statements of House Minority Leader John Boehner and House Minority Whip Eric Cantor). For its part, the Tea Party promulgated a Contract from America, embracing an agenda grounded in "individual liberty, limited government, and economic freedom" and calling for Congress to "restore fiscal responsibility & constitutionally limited government." The Contract from America, CONTRACT FROM AM., http://www.thecontract.org/the-contract-from-america (last visited June 3, 2011).
432. The fact that it is harder to enact major legislation, of course, does not mean that Congress is incapable of enacting such legislation. In 2010, Congress enacted both healthcare legislation and legislation regulating Wall Street. At the same time, for reasons noted supra notes 84, 122, and 215, today's overwhelmingly Democratic Congress has had a difficult time pursuing its legislative agenda. Apparently, sixty Democratic Senators is not quite enough for effective supermajority control in today's polarized Congress.
433. See DEVINS & FISHER, supra note 118, at 217-39
434. Neal Devins & Louis Fisher, Judicial Exclusivity and Political Instability, 84 VA. L. REV. 83, 104-05 (1998).
435. Proposals to improve congressional performance include the creation of a specialized "Committee on the Constitution" to provide a "constitutional impact statement" on proposed legislation and the evisceration of judicial review altogether to create needed incentives for Congress to pursue constitutional questions.
436. See Garrett & Vermeule, supra note 86, at 1319-39
437. see also TUSHNET, supra note 95, at 163-72. For critiques of these proposals
438. see Neal Devins, Reanimator: Mark Tushnet and the Second Coming of the Imperial Presidency, 34 U. RICH. L. REV. 359, 367-71 (2000), which notes that the elimination of judicial review will result in the centralization of constitutional authority in the President, not Congress, and Tushnet, supra note 96, at 504-08, which describes difficulties of implementing the "Committee on the Constitution" proposal. Another proposal, suggested to me by Hans Linde, is to change the rules governing lawmaker standing. That would allow minority lawmakers to pressure the majority party to take constitutional issues seriously because minority party members would have an opportunity to raise those issues in court. The rub here, of course, is the need to overhaul Supreme Court doctrine on lawmaker standing and some fundamental tenets of our system of checks and balances. See Raines v. Byrd, 521 U.S. 811 (1996) (holding that members of Congress lack standing to allege a cause of action when official congressional power as a whole is affected).
439. According to the strategic model of judicial behavior, judges should take backlash risks into account when crafting their decisions. See LEE EPSTEIN & JACK KNIGHT, THE CHOICES JUSTICES MAKE 9-18 (1998)
440. see also Jeffrey A. Segal, Separation-of-Powers Games in the Positive Theory of Congress and Courts, 91 AM. POL. SCI. REV. 28 (1997) (discussing why courts must consider Congress's preferences and changes in the political environment).
441. Sinclair, supra note 76, at 397. By raising this issue, I am not suggesting that Congress's disinterest in constitutional questions is principally a byproduct of "judicial overhang," the tendency of lawmakers to steer clear of the constitutional thicket by delegating that power to the judiciary.
442. See TUSHNET, supra note 95, at 57-60 (suggesting that congressional disinterest is largely a result of "judicial overhang"). Instead, I mean to suggest, though not embrace, an alternative justification for judicial deference to Congress: the historic practice of the Supreme Court to defer to legislative judgments and "the democratic process." Vance v. Bradley, 440 U.S. 93, 97 (1979).