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

AuthorNicholas O. Howard,David A. Hughes
Published date01 March 2022
Date01 March 2022
Subject MatterArticles
2022, Vol. 75(1) 61 –75
Political Research Quarterly
© 2020 University of Utah
Article reuse guidelines:
DOI: 10.1177/1065912920972780
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
1Auburn University at Montgomery, AL, USA
Corresponding Author:
David A. Hughes, Auburn University at Montgomery, P.O. Box
244023, Montgomery, AL 36124-4023, USA.
Revisiting Senatorial Courtesy and the
Selection of Judges to the U.S. Courts of
Nicholas O. Howard1 and David A. Hughes1
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.
judicial appointments, U.S. Courts of Appeals, senatorial courtesy

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