Academic journal article
By Swenson, Karen
Justice System Journal , Vol. 27, No. 2
Promotions through the ranks of the federal courts account for many of the president's nominees to the U.S. Courts of Appeals. Features of the district court judge that influence whether the president will promote the judge or rule out consideration of the judge include the judge's party, race, and gender. The judge's age, ABA rating at the time of appointment to the district court, length of tenure on the district court bench, the judge's voting record (the ideological direction of the judge's decisions), and support for the federal government are also hypothesized to influence the president's promotion decision. The records of district judges appointed by President Reagan whom he later nominated to a vacant court of appeals position are compared with Reagan-appointed judges whom he did not choose to nominate, and the hypothesis is not supported.
The federal district court bench is a training camp for the federal courts of appeals bench. A president faced with a vacancy on a court of appeals looks, though not exclusively, to sitting district court judges. Of the seventy-eight appeals court judges appointed by President Ronald Reagan, for example, thirty-three were elevated from the district court. During his second term, he elevated fifteen of his own appointees. Of fifty-seven appellate appointments by Presidents Nixon and Ford, thirty-one came from the district court, although President Jimmy Carter promoted only fifteen of his district court appointees to the fifty-six appellate judgeships that he filled (Goldman, 1997). Beginning with President Franklin D. Roosevelt, well over half the federal appellate judges have had prior judicial experience, and the most common type of such experience was as a federal district court judge. The tendency has continued to the present. Half of President George W. Bush's sixteen appellate court appointments during 2001-02 came from the judiciary (Goldman et al., 2003) and thirty-two of sixty-one Clinton appellate appointees were from the judiciary (Goldman et al., 2001); not all, but most, were elevations from the federal district court. In addition to elevating sitting members of the judiciary, presidents also often select appellate judges from lawyers in private practice, law professors, and government employees, such as prosecutors.
This article provides a comparison of the records of the district judges appointed by President Reagan whom he later selected to nominate to a vacant court of appeals position with those comparable Reagan-appointed judges that he did not choose to nominate. The factors affecting the nomination decision, not the Senate confirmation process, are the focus. Of course, a nominated candidate must also achieve confirmation before promotion is realized, and presidents assess what lies ahead when making their nomination choices. Research has shown, however, that the Senate's preference, to the extent that it differs from the president's, is dwarfed by the impact of the president's preference (Scherer, 2001). Although, as the judges under consideration here have already been approved once by the Senate, the president no doubt bears this "confirmability" factor in mind.
Predicting Who Gets Promoted. Although the odds are good that a U.S. Court of Appeals judge has made his or her federal court debut at the federal trial court level, the odds that a given district court judge will receive a promotion are not good. This is because the number of appellate judgeships is smaller than the number of district court judgeships; there are 678 district court judgeships and 167 appellate court judgeships. Given this disparity, what predicts the likelihood that the president will nominate a given district court judge to the court of appeals?
A president is unlikely to elevate a judge not of his own party, but to what beyond political party does the president look? A district judge's personal characteristics appear to make a difference. Goldman et al. …