The Timing of Presidential Nominations to the Lower Federal Courts

Article excerpt

Presidents often move quite slowly to exercise their important power of judicial appointment. This study attempts to explain these delays by developing a strategic conception of the timing of presidential nominations to the lower federal courts. We argue that the judicial selection process may be best conceptualized by viewing presidents as strategic actors who prefer to select judges with policy preferences that are as close as possible to those of the president, given senatorial and temporal constraints. We test our argument by estimating a duration model of the length of time between vacancy and nomination for all vacancies in the U.S. District Courts and U.S. Courts of Appeals from 1977 to 1999. Our results indicate that the liming of presidential nominations is a function of both politics and institutional constraint.

Presidential appointments to the United States District Courts and the United States Courts of Appeals present an interesting puzzle. On the one hand, it is clear that the constitutional prerogative to appoint such judges is an important power of the president. Federal judges on these lower courts are important policymakers whose personal policy preferences have a substantial impact on the development of law (Goldman 1975; Rowland and Carp 1996; Songer, Sheehan, and Haire 2000). Once appointed, these judges typically serve "for life" and their decisions are generally consistent with the political preferences of the president who appointed them (Songer and Ginn 2002). Consequently, any president hoping to influence judicial policymaking must concern himself with those who sit on the lower federal courts.

On the other hand, presidents often move quite slowly to exercise their power of judicial appointment. In many instances, presidents wait well over a year after a judicial vacancy occurs before they announce their nominee. Given the importance of the power to nominate federal judges, why do presidents so frequently delay the exercise of this power? Why do they not quickly seize upon an opportunity to shape the judiciary?

In addition to constituting an interesting theoretical puzzle, presidential nomination delays are of substantive importance. Much recent attention has been paid to the length of time it takes to fill judicial vacancies because enduring vacancies presumably increase the workload for federal judges and overburden the judiciary. Although the Senate sometimes draws out the confirmation process, the data indicate that recent presidents largely have been responsible for the duration of judicial vacancies. Therefore, while it is important to understand why the Senate delays confirmation (see Binder and Maltzman 2002; Martmek, Kemper, and Van Winkle 2002), it is just as critical to develop an understanding of presidential nomination delays.

An attempt to solve the puzzle of presidential nomination delay requires systematic study of the period between the creation of lower court vacancies and the announcement of presidential nominations. We develop a strategic conception of presidential nominations and argue that the timing of nominations depends on the extent to which the president can select a nominee that reflects his policy preferences, while facing senatorial and temporal constraints. We test our argument by estimating a duration model of the length of time between vacancy and nomination for all vacancies in the U.S. District Courts and U.S. Courts of Appeals from 1977 to 1999.

THE APPOINTMENT OF FEDERAL JUDGES

Extant research on the selection of federal judges provides both a wealth of detailed, descriptive information (e.g., Abraham 1992; Berkson and Carbon 1980; Chase 1972; Fowler 1983; Goldman 1997; Harris 1953; McFeeley 1987; Sheldon and Maule 1997; Yalof 1999) and theoretical, systematic studies of the outcomes of the presidential nomination (Moraski and Shipan 1999) and Senate confirmation (Caldeira and Wright 1998; Overby et al. 1992; Segal, Cameron, and Cover 1992) phases of the selection process. …