The Timing of Presidential Nominations to the Lower Federal Courts

• Author: Tajuana D. Massie,Thomas G. Hansford,Donald R. Songer
• DOI: 10.1177/106591290405700112
• Date: 01 March 2004
• Published date: 01 March 2004
• Subject Matter: Articles

The Timing of Presidential Nominations
to the Lower Federal Courts
TAJUANA D. MASSIE, THOMAS G. HANSFORD, and DONALD R. SONGER
UNIVERSITY OF SOUTH CAROLINA
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 view-
ing presidents as strategic actors who prefer to select judges with policy preferences that are as close as possi-
ble 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 timing of presidential
nominations is a function of both politics and institutional constraint.
Presidential appointments to the United States District it is important to understand why the Senate delays confir-
Courts and the United States Courts of Appeals pres-
mation (see Binder and Maltzman 2002; Martinek, Kemper,
ent an interesting puzzle. On the one hand, it is clear
and Van Winkle 2002), it is just as critical to develop an
that the constitutional prerogative to appoint such judges is
understanding of presidential nomination delays.
an important power of the president. Federal judges on
An attempt to solve the puzzle of presidential nomina-
these lower courts are important policymakers whose per-
tion delay requires systematic study of the period between
sonal policy preferences have a substantial impact on the
the creation of lower court vacancies and the announcement
development of law (Goldman 1975; Rowland and Carp
of presidential nominations. We develop a strategic concep-
1996; Songer, Sheehan, and Haire 2000). Once appointed,
tion of presidential nominations and argue that the timing
these judges typically serve “for life” and their decisions are
of nominations depends on the extent to which the presi-
generally consistent with the political preferences of the
dent can select a nominee that reflects his policy prefer-
president who appointed them (Songer and Ginn 2002).
ences, while facing senatorial and temporal constraints. We
Consequently, any president hoping to influence judicial
test our argument by estimating a duration model of the
policymaking must concern himself with those who sit on
length of time between vacancy and nomination for all
the lower federal courts.
vacancies in the U.S. District Courts and U.S. Courts of
On the other hand, presidents often move quite slowly to
Appeals from 1977 to 1999.
exercise their power of judicial appointment. In many
instances, presidents wait well over a year after a judicial
THE APPOINTMENT OF FEDERAL JUDGES
vacancy occurs before they announce their nominee. Given
the importance of the power to nominate federal judges,
Extant research on the selection of federal judges pro-
why do presidents so frequently delay the exercise of this
vides both a wealth of detailed, descriptive information
power? Why do they not quickly seize upon an opportunity
(e.g., Abraham 1992; Berkson and Carbon 1980; Chase
to shape the judiciary?
1972; Fowler 1983; Goldman 1997; Harris 1953; McFee-
In addition to constituting an interesting theoretical
ley 1987; Sheldon and Maule 1997; Yalof 1999) and theo-
puzzle, presidential nomination delays are of substantive
retical, systematic studies of the outcomes of the presiden-
importance. Much recent attention has been paid to the
tial nomination (Moraski and Shipan 1999) and Senate
length of time it takes to fill judicial vacancies because
confirmation (Caldeira and Wright 1998; Overby et al.
enduring vacancies presumably increase the workload for
1992; Segal, Cameron, and Cover 1992) phases of the
federal judges and overburden the judiciary. Although the
selection process. While the outcomes of this process are
Senate sometimes draws out the confirmation process, the
very important, Nixon and Goss (2001) note that there is
data indicate that recent presidents largely have been respon-
also variation in the length of time it takes to fill judicial
sible for the duration of judicial vacancies. Therefore, while
vacancies. In particular, scholars have taken notice of
recent delays in the Senate’s confirmation of nominees to
the lower federal courts (Slotnick and Goldman 1998).
NOTE: A prior version of this research was presented at the Annual Meet-
These delays suggest that the process of Senate confirmation
ing of the Southern Political Science Association, Atlanta, Novem-
is as important to study as the outcomes. Accordingly,
ber 7- 10, 2001. We appreciate comments provided by Susan
recent studies investigate the duration of Senate confirma-
Haire and Stephen Wasby.
tions and find that senatorial delay is a function of politics,
Political Research Quarterly, Vol. 57, No. 1 (March 2004): pp. 145-154
institutional features, and nominee characteristics (Binder
145

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146
POLITICAL RESEARCH QUARTERLY
and Maltzman 2002; Hartley 2001; Martinek, Kemper, and
important are the constraints resulting from the need to
Van Winkle 2002).
secure the confirmation of their nominees by the Senate, the
While this recent work adds to our understanding of the
norm of senatorial courtesy, and constitutionally imposed
process of Senate confirmation, the period of time between
temporal constraints.3 Presidents will respond to these con-
the creation of a judicial vacancy and the announcement of
straints in a strategic manner and time nominations so as to
a nomination to fill the vacancy is just as important. During
maximize the opportunity to influence judicial policymak-
this period, the president must identify politically compati-
ing.4 Delays can result from this strategic behavior.
ble candidates, negotiate with home-state senators, and
Since the Senate must confirm a president’s judicial nom-
anticipate the probable reactions of the rest of the Senate.
inee, when making his final selection the president will
Moreover, an examination of the duration of the judicial
undoubtedly need to take the preferences of the Senate into
selection process suggests that the nomination process is the
consideration (Moraski and Shipan 1999; Hartley and
most time-consuming. Our analysis of the data described
Holmes 1997).5 Even if the Senate does not formally vote to
below shows that for the 1977-1999 period, the time
reject a president’s nominees, it can delay the final confir-
between vacancy and the announcement of a nomination
mation vote. In fact, if the Senate does not vote on a nomi-
averaged 317 days. In contrast, the average length of time
nee by the end of the Congress, then the nomination is
between nomination and final Senate disposition of a nomi-
effectively defeated. The likelihood of the Senate delaying
nation ranges only from 41 days (under Reagan) to 80 days
confirmation of a nominee depends, in part, on whether the
(under Clinton) (Martinek, Kemper, and Van Winkle 2002).1
Senate is controlled by the president’s party (Binder and
Delay by the president in the announcement of a nomination
Maltzman 2002; Martinek, Kemper, and Van Winkle 2002;
is typically much longer than confirmation delays.
Slotnick and Goldman 1998). We contend that a strategic
president will anticipate the Senate’s likely action on a nom-
UNRAVELING THE PUZZLE OF NOMINATION DELAYS
inee, and thus the timing of nominations can be expected to
depend on the partisan control of the Senate. More pre-
Assuming that presidential behavior is goal-oriented, any
cisely, it is the interaction between partisan control of the
attempt to explain presidential nomination decisions must
Senate and the length of time remaining in the Congress
start with the positing of a goal or set of goals that presidents
that will affect the timing of presidential nominations.
pursue. As noted by Goldman (1997), it is likely that presi-
When the opposing party controls the Senate, the presi-
dents pursue multiple goals when selecting judicial nominees.
dent must expect senatorial delay (Binder and Maltzman
Specifically, Goldman suggests that presidents might seek to
2002; McCarty and Razaghian 1999). If it is early in the
influence policy outcomes, bolster political support, or reward
Congress, this delay is unlikely to prevent the ultimate con-
personal friends. In order to develop a parsimonious model of
firmation of the nominee. If the president announces a
the timing of presidential nominations, we make the simplify-
nomination late in the Congress, then it is more probable
ing assumption that presidents solely pursue policy influence
that senatorial delay will prevent confirmation. For this
when making nominations.2 That is, we assume that presi-
reason, we suggest that when the Senate is controlled by the
dents prefer to select nominees who share their personal
opposing party the president will be more likely to make
policy preferences. Indeed, the findings of the literature on the
nominations early in the Congress. When there is little time
congruence between the policy preferences of presidents and
left in the Congress, however, the president will become less
their lower court appointments suggest that presidents seek
likely to attempt to fill judicial vacancies as the decreasing
nominees who share the president’s preferences (Rowland and
...