Continuity and Change in the Appointment of Lower Federal Court Judges

• In Event: Politics of Federal Judicial Selection

Abstract

The literature on lower federal court appointments is rich with claims regarding variation in the process and outcomes over time. Binder and Maltzman (2009) characterize these arguments as being either “big bang” or “nothing-new-under-the-sun" claims, with the latter mainly relating to structural changes in national politics, such as changes in the party system (see Scherer 2005; Goldman 1997), and the latter being about the process always being politicized and ideological (see Epstein and Segal 2005). Using data on presidential nominations to the district courts and Senate confirmation of Courts of Appeals nominees from 1947-1998, they reject both points of view. Instead, they emphasize continuity in the process, though they also assert that institutional developments over time, especially to Senate norms, political polarization, and the perception (in the 1960s and beyond) that federal courts make policy, made the process “qualitatively different today” (101). However, they do little to test how the nomination and confirmation process altered as a result of such longitudinal forces.

In this paper (which is part of a book project), we seek to understand whether, when, how, and by what magnitude national political forces (e.g., party polarization (Basinger and Mak (2010)), along with institutional norms internal to the Senate (e.g., Senatorial Courtesy, the Blue Slip, and State Representation) altered: (1) the likelihood nominees will be confirmed, as well as the length of time to nomination and confirmation; and (2) the effect of certain variables on the nomination and confirmation process. Additionally, we aim to ascertain to what degree these forces vary across the district courts and courts of appeals.

To empirically get at these puzzles, we will look at all nominations to the federal district courts and courts of appeals from 1789-2016 (and will go through 2020 when a Nominate score is available for President Trump). One unique aspect of our research is that most quantitative studies focus on lower court appointments since the 1970s, with the exception of Binder and Maltzman, who go back to 1947. Our data will allow us to dig into how early American history may have been different, perhaps, for example, as a function of patronage appointments, as opposed to policy-based ones (see Bell 2013, Gerhardt and Stein 2015). It will also allow for us to ascertain when Senatorial Courtesy took hold, as the literature disagrees about whether it was just after the Civil War, with the emergence of the two-party system (Binder and Maltzman 2009, 32; Hall 1979, 171-172), or around 1917. Finally, we will be able to identify how the Senate’s power over appointments waxes and wanes over time.

In summary, this paper will develop a theory of institutional change, coupled with quantitative tests of it, to better understand how the federal courts appointment process changed over the course of American history. In doing so, we will provide a richer understanding of how judges get on to these important courts.

Authors

• Joshua Boston, Bowling Green State University

• Patrick Donald Rickert, Washington University in St. Louis

• James F. Spriggs, Washington University, St. Louis

• Nicholas Waterbury, Washington University in St. Louis