Revisiting Senatorial Courtesy and the Selection of Judges to the U.S. Courts of Appeals

• Author: Nicholas O. Howard,David A. Hughes
• Published date: 01 March 2022
• Date: 01 March 2022
• DOI: http://doi.org/10.1177/1065912920972780
• Subject Matter: Articles

2022, Vol. 75(1) 61 –75

https://doi.org/10.1177/1065912920972780

Political Research Quarterly

© 2020 University of Utah

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DOI: 10.1177/1065912920972780

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Introduction

Because federal judges in the United States are policy-

makers, their selection is often contentious. Article II,

Section 2 of the U.S. Constitution provides that presi-

dents “shall nominate, and by and with the advice and

consent of the Senate, shall appoint . . . judges of the

Supreme Court, and all other officers of the United

States . . . ”1 What exactly, though, does “advice and

consent” mean with respect to judicial appointments? At

the time of the founding, two schools of thought emerged

on this subject. In Federalist No. 76, for example,

Alexander Hamilton argued that the Senate’s power was

merely a negative—the power to reject a president’s

nomination (Hamilton, Madison, and Jay 1966). By

contrast, John Adams believed that the Senate could

take a more proactive role in affecting the object of a

nomination itself (Harris 1968).2

From a normative perspective, the advice and consent

clause is sufficiently vague to give presidents and sena-

tors alike credible claims to influence over the selection

of judicial candidates. Empirically, however, these indi-

viduals exist within a mutually strategic environment that

self-interested actors are likely to exploit for political

ends. By examining these individuals, their preferences,

and the institutions that constrain their behavior, political

scientists can better understand how the process of advice

and consent works in practice.

As the first mover in the appointments game, the

president enjoys a considerable advantage over the

selection of federal judges. Even still, research indicates

that senators may enjoy greater success in affecting at least

one group of nominees—those tapped to fill vacancies on

district or circuit courts. These vacancies are assigned to

individual states, and when presidents and the senators rep-

resenting those states belong to the same political party,

“senatorial courtesy” dictates that home-state senators

approve nominees on behalf of the entire Senate. Because

presidents prefer to fill judicial vacancies—even with less-

than-ideal candidates—the threat of senatorial courtesy

can potentially constrain their choice of nominee.

Evidence is mixed, however, regarding the extent to

which home-state senators influence judicial appoint-

ments. Examining circuit judge voting behavior, Giles,

Hettinger, and Peppers (2001) find that home-state sena-

tors’ preferences better predict vote outcomes under con-

ditions of senatorial courtesy, but presidential preferences

better predict votes absent those conditions. Using a simi-

lar research design, Songer and Ginn (2003) find slight

evidence that home-state senators influence circuit judge

selection under conditions of courtesy but find greater

evidence that presidential preferences dictate judicial

972780PRQXXX10.1177/1065912920972780Political Research QuarterlyHoward and Hughes

research-article2020

1Auburn University at Montgomery, AL, USA

Corresponding Author:

David A. Hughes, Auburn University at Montgomery, P.O. Box

244023, Montgomery, AL 36124-4023, USA.

Email: david.hughes@aum.edu

Revisiting Senatorial Courtesy and the

Selection of Judges to the U.S. Courts of

Appeals

Nicholas O. Howard1 and David A. Hughes1

Abstract

We examine how elite attitudes and institutional rules and norms affect appointments to lower federal courts. Using

voting data from 1,339 U.S. Courts of Appeals cases, we estimate new ideological measures for 475 individual circuit

judges appointed between 1913 and 2008. We find that both presidential and home-state senators’ preferences

strongly predict judicial ideology. While we find evidence that conditions of senatorial courtesy can constrain

presidents from nominating like-minded individuals for lower court vacancies, this trend peaked during the 1960s and

has been eroding ever since.

Keywords

judicial appointments, U.S. Courts of Appeals, senatorial courtesy

Article