Presidential Decision Making and Minority Nominations to the U.S. Courts of Appeals

Article excerpt

Institutions whose members fail to reflect the diversity of the population are often taken to be unrepresentative of citizens' policy preferences and potentially undemocratic (Mansbridge 1999; Pitkin 1978). For the courts to be viewed as legitimate, they must be at least marginally representative of the racial composition of the public. The symbolic representation of minority judges "has a positive and legitimizing effect on the functioning of a democracy" (Walker and Barrow 1985, 597). Institutional legitimacy is particularly essential for the judiciary because it "has no influence over either the sword or the purse" (Hamilton 1788). Furthermore, if minority judges decide cases differently (Scherer 2004-05; Welch, Combs, and Gruhl 1988), it is especially imperative to understand what drives minority nominations to circuit courts. Even though extensive work has been done on minority representation in Congress (e.g., Cameron, Epstein, and O'Halloran 1996; Canon, Schousen, and Sellers 1996; Lublin 1997a, 1999), minority representation on circuit courts remains relatively unexamined outside of qualitative studies (e.g., Goldman 1997). The primary value of this research article is that it demonstrates that some of the potential influences believed to affect presidents' nomination decisions have little impact, whereas others have surprisingly large effects.

When presidents and their advisors are deciding whom to nominate to openings on the U.S. courts of appeals, to what extent do they take into consideration or even give priority to signals from other political actors? Senators, especially home-state senators, immediately come to mind as a potential influence on these decisions. Various characteristics of a state (e.g., the size of the minority population, minority economic influence, and minority representation in the congressional delegation) may also generate pressure on presidents to nominate minority judges and on senators to approve them (Gryski, Zuk, and Barrow 1994).

A reading of Goldman's (1997) work on how various presidents have gone about nominating federal judges can take researchers down a variety of paths with respect to a particular combination of influences because of the lack of clear guideposts as to what affects presidents making this decision, Some quantitative studies indicate which factors might affect presidential decision making on the diversification of circuit courts. For example, Bratton and Spill (2002) show that gender diversification of state supreme courts is responsive to a variety of conditions, such as the method of appointment in a state. However, relatively little is known about how minority nominations are generated for appointments to the U.S. courts of appeals--a gap that is especially surprising given that the U.S. courts of appeals, which lie immediately below the Supreme Court in the judicial hierarchy, are effectively courts of last resort for each party in nearly every federal case (Carp and Stidham 1998). In fact, the Supreme Court usually reviews less than 1 percent of the cases that are appealed to it each year from the U.S. courts of appeals (Songer, Sheehan, and Haire 2000). (1) Because circuit courts play such a prominent role in the federal judicial system, knowing what determines who is on the circuit courts is imperative to better understanding American politics.

In analyzing minority nominations to the U.S. courts of appeals, I employ a strategic model of presidential decision making. That is, I account for how presidents combine their own preferences with information about the preferences of other potentially influential individuals and institutions to arrive at a particular nomination. Strategic models have been used to show that presidents are strategic in deciding whether to issue an executive order (Deering and Maltzman 1999), in nominating Supreme Court justices (Moraski and Shipan 1999), and in determining whether to go public (Canes-Wrone 2001). …