The Hydraulic Theory of Opposition
For many years scholars and the public have assumed that Circuit Court confirmation hearings, like Supreme Court confirmation hearings, are contentious and focused on hot button issues such as abortion. In fact, this article will show that prior to the Trump administration Circuit Court nominees were rarely questioned about abortion and hearings were rarely contentious. But in the 115th Congress (the first two years of the Trump administration) the majority of nominees were questioned about abortion—some of them at great length. This article seeks to explain this change in senatorial behavior and suggests that it is the result of legal and political pressures on the senators as well as changes to Senate procedures. This is the Hydraulic Theory of Opposition. The legal and political pressures on the Democratic senators drive them to oppose these nominees based on the nominees’ presumed position vis-à-vis abortion; and the way the Senate structures its procedures determines how this opposition manifests. Because the Senate has eliminated sub rosa forms of opposition—such as the filibuster and Blue Slips—contentious confirmation hearings are now how that opposition manifests. Because confirmation hearings do nothing to improve the confirmation process and do considerable harm to the nominees, the federal judiciary, and the public’s perception of the judiciary, this article suggests a further change in Senate procedure to improve the process: The elimination of confirmation hearings as a standard feature of the confirmation process.
