Elevation Potential among Circuit Court Nominees and Its Effect on the Senate’s Confirmation Behavior

• DOI: 10.1177/1065912919879233
• Author: Alex Badas
• Published date: 01 March 2020
• Date: 01 March 2020
• Subject Matter: Articles

879233PRQXXX10.1177/1065912919879233Political Research QuarterlyBadas
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Political Research Quarterly
2020, Vol. 73(1) 96 –110
Elevation Potential among Circuit Court © 2019 University of Utah
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Nominees and Its Effect on the Senate’s
https://doi.org/10.1177/1065912919879233
DOI: 10.1177/1065912919879233
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Confirmation Behavior
Alex Badas1
Abstract
Using traits conventionally believed to lead to elevation from the Circuit Courts to the Supreme Court, this paper
uses an item response theory model to estimate latent elevation estimates for each Circuit Court judge nominated
and confirmed between 1901 and 2017. I validate this measure by showing that it predicts which Circuit Court judges
are promoted to the Supreme Court and which end up on the president’s Supreme Court shortlist. Furthermore, I
investigate how the Senate strategically responds to the nomination of Circuit Court nominees with high elevation
estimates. The Senate takes longer to confirm nominees with high elevation scores and is less likely to confirm them
by voice vote, and these nominees receive a greater share of nay votes. This paper concludes by suggesting additional
uses for the elevation estimates.
Keywords
judicial politics, federal courts, judicial appointments, measurement
One of the central questions in the judicial politics litera-
court to a higher court. Few scholars have attempted to
ture involves the political dynamics that underlie the
develop measures that capture Circuit Court judges’
selection of the individuals who serve on the federal
potential for elevation to the Supreme Court. Meanwhile,
courts. Existing scholarship addresses questions such as
existing measures suffer from two flaws. First, measures
how the president decides who to appoint to the courts
are too narrow and do not encompass a range of nuanced
(Nemacheck 2008; Rottinghaus and Nicholson 2010),
considerations that presidents view as valuable for poten-
how the Senate exercises its advise and consent authority
tial Supreme Court nominees. Second, each measure
(Binder and Maltzman 2002; Epstein et al. 2006; makes incorrect assumptions about the nature of eleva-
Martinek, Kemper, and Van Winkle 2002), and how inter-
tion potential. Specifically, they assume that potential is
est groups participate in the confirmation process gained only after a nominee is first confirmed to the
(Caldeira and Wright 1998; Maltese 1995). While these
Circuit Court. Yet, many Circuit Court nominees are dis-
questions and their answers provide valuable insight into
cussed as having the potential for promotion to the
the political dynamics of judicial selection, they fail to
Supreme Court before they are even confirmed to the
consider one important aspect of judicial selection. The
Circuit Court. Thus, the theoretical expectations based on
federal courts are designed in a hierarchical structure.
existing measures of potential for elevation are not clearly
Within this hierarchical structure, judges often serve on a
defined.
lower court and are later promoted to a higher court. In
To resolve this problem, this paper develops elevation
fact, the modal form of experience prior to a particular
estimates for Circuit Court nominees using an item
appointment is experience on a lower court. In the con-
response theory model. The elevation estimates capture a
text of the Supreme Court, this means experience on the
Circuit Court nominee’s potential to be elevated to the
Circuit Court of Appeals. Of all Supreme Court Justices
Supreme Court. The estimates are based on a nominee’s
since 1901, 44 percent have served on the Circuit Court.
This trend has only strengthened over time; since the
1University of Houston, TX, USA
1970s, at least eight of the nine sitting Justices have
served on the Circuit Courts.
Corresponding Author:
Despite the centrality of experience on the lower
Alex Badas, Department of Political Science, University of Houston,
3551 Cullen Boulevard, Mailroom 447, Houston, TX 77204-3011,
courts, judicial politics scholars have yet to develop a
USA.
reliable measure of potential for elevation from a lower
Email: abadas@uh.edu

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Badas
97
Court Experience
Budziak (2013) presents the most detailed attempt to esti-
mate an indicator of potential for elevation from the
Circuit Courts to the Supreme Court. His measure uses
factor analysis, using a judge’s relative age and judicial
experience to produce a measure of potential for eleva-
tion. Judges who are relatively young with relatively high
levels of judicial experience are said to have high poten-
tial for elevation. In his analysis, he demonstrates that
judges with higher potential for elevation tend to display
greater ideological consistency than judges with low
potential for elevation. He reasons that judges who are
ideologically consistent have greater likelihood of cap-
Figure 1. Percent of Supreme Court Justices with Circuit
turing the attention of a co-partisan president.
Court Experience.
By contrast, Black and Owens (2016) are less con-
Source. Epstein, Knight, and Martin (2003), with updated by the
author.
cerned with establishing a measure of potential for eleva-
tion and more interested in how being considered for
elevation influences the decision making of Circuit Court
experience, personal pedigree, and contextual cues pro-
judges. Black and Owens (2016) conceptualize a Circuit
vided at the time of their nomination. I validate the scores
Court judge as being under consideration for promotion
in two ways. First, I show that they predict which Circuit
as an indicator variable capturing whether the judge
Court judges are elevated to the Supreme Court and
appeared on the sitting president’s shortlist for a potential
which Circuit Court judges are considered for elevation
Supreme Court vacancy (Nemacheck 2008). They find
to the Supreme Court. Second, I show that in accordance
that judges who appear on the president’s shortlist update
with theory, the elevation estimates predict the degree of
their voting behavior during periods with a Supreme
scrutiny the Senate gives Circuit Court nominees. Court vacancy, becoming more ideologically consistent,
Specifically, I show that Circuit Court nominees with
more compatible with the president, and more deferential
high elevation estimates experience greater time to their
to the federal government.
confirmation vote, are less likely to be confirmed via
Savchak et al. (2006) model the factors that lead
voice vote, and receive a greater share of nay votes than
Federal District Court judges to be promoted to the
Circuit Court nominees with lower elevation estimates.
Federal Circuit Court of Appeals. Their model finds that
the best predictor of elevation is presidential compatibil-
Elevation of Circuit Court Judges
ity with a judge’s record and a shared partisanship
between the president and the trial court judge. Thus,
Serving on the Circuit Court of Appeals prior to a
while Savchak et al. (2006) do not formally establish a
Supreme Court nomination is becoming a norm. Since
measure of potential for elevation, their model implies
1901, 44 percent of all Supreme Court Justices have had
that a shared partisanship and ideological compatibility
experience on the Circuit Court of Appeals. This makes
with the sitting president would be two traits that poten-
experience on the Circuit Court of Appeals the modal
tially would lead Circuit Court judges to be elevated to
form of experience Supreme Court nominees have before
the Supreme Court.
they are appointed to the Court. Over time, the trend of
While each measure provides useful insights into
Circuit Court experience is strengthening and it is becom-
elevation and how potential elevation may influence
ing increasingly a norm that Supreme Court Justices will
judicial behavior, each measure has limitations that
serve on the Circuit Courts prior to their appointment
diminish their validity as measures of elevation poten-
(Epstein, Knight, and Martin 2003). Figure 1 displays the
tial. Chief among these limitations is a narrow concep-
percentage of Justices who had previously served on the
tualization of potential. Specifically, each measure is
Circuit Courts prior to their appointment to the Supreme
based on only one or two considerations. For example,
Court. As Figure 1 highlights, since the 1970s, at least
Budziak (2013) uses only relative age and experience.
eight of the nine Justices have served on the Circuit
While these factors are important, other factors beyond
Courts prior to their appointment to the Supreme Court.
a nominee’s youth and judicial experience are also
Due to this norm of prior Circuit Court experience, it is
important. Typically, potential for elevation is discussed
important to understand which Circuit Court judges have
in ways that encompass multiple traits each highlighting
high potential for elevation to the Supreme Court.
the importance of experience, personal qualification,
Existing research presents several possibilities.
and contextual cues. Furthermore, Budziak (2013) does

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Political Research Quarterly 73(1)
not validate his measure and does not demonstrate that
However, if some Circuit Court nominees—such as Sri
his measure predicts which nominees are elevated from
Srinivasan and Don Willett—have potential for...