Judicial Nominations to the Courts of Appeals and the Strategic Decision to Elevate

Abstract

Although presidents regularly elevate district court judges to fill appellate court vacancies, research to date suggests that presidents elevate judges who are further from their preferences than nominees outside the federal judiciary. Current research also does not offer a satisfactory answer of when and why presidents decide to elevate. I argue that presidents are likely to decide to elevate when they perceive political conditions that they think will lead to a nominee facing a difficult confirmation battle in the Senate. Once they decide to elevate, they then elevate judges further from their preferences, knowing they will have the conciliatory prize of being able to fill a newly opened district court seat. This argument is bolstered by recent work that theorizes that judicial nominations and confirmations are dynamic, and not one-shot activities that gridlock models of advice and consent would suggest. The results of this analysis bear out my hypotheses. Presidents typically elevate when the ideological balance of an appellate court is at stake and, when they do, they often elevate district judges who are further from their preferences than they otherwise would. In fact, the district judges they elevate frequently resemble ideologically the appellate judges they are replacing.