Assessing Changes in State Representation on the U.S. Courts of Appeals

Abstract

Amid continuing political controversy and renewed scholarly interest, presidential appointments to the lower federal courts, particularly the courts of appeals, play an important role in defining a president's legacy. Like Supreme Court appointments, lower-court appointments long outlast a president's tenure. Lower-court appointments also provide the pool from which future Supreme Court justices often emerge. As we will show, however, a key aspect of nominations to the appellate courts remains largely unexplored. History is replete with examples in which states' representation in the federal judiciary increased or decreased as a result of presidential appointment to the courts, Often, these episodes are among the most contentious nominations to the federal judiciary. Despite the attention that senators and presidents give to geography in the appointment process, we argue that scholars' perceptions of the judicial appointment process do not account for the role geography plays in the president's selection, and the Senate's consideration, of court of appeals judges. Ignoring the role geography plays leaves scholars with incomplete perceptions of the appointment and confirmation process. this article, we attempt to ascertain the criteria presidents use when deciding which state to allot a particular vacancy on the courts of appeals. This includes considering how the Senate might affect those choices. Better understanding that process, we argue, offers the prospect of illuminating historical patterns in judicial appointments that can help place today's controversies in a broader context. addition to advancing our understanding of the judicial appointment and confirmation process, by exploring the role of geography in court appointments, we analyze the impact of federal statutes that now provide a definitive role for geography in court appointments. Understanding geography, then, becomes important for both theoretical and practical reasons. Not surprisingly, much of the existing literature focuses on the transition from an outgoing appellate judge to a new nominee. This includes examining when judges choose to retire, thereby creating vacancies for a president to fill (Nixon and Haskin 2000; Spriggs and Wahlbeck 1995); whom a president chooses to nominate to the courts of appeals (Goldman 1997; Savchak et al. 2006); the timing of those appointments (Massie, Hansford, and Songer 2004); and the amount of time required to confirm nominees to the courts of appeals (Bell 2002; Binder and Maltzman 2002; Martinek, Kemper, and Van Winkle 2002). This body of work has added considerably to scholars' knowledge about what determines successful or failed appeals court nominations. Historically, nominations to the courts of appeals (and to the district courts) were not known as touchstones of ideological controversy. Rather, they were viewed as a component of presidential and senatorial patronage (Goldman 1997; Hall 1979). Even senators may be unlikely to follow most lower-court nominations closely---except those from their home state or region (Binder and Maltzman 2002, 191). such cases, senators often squared off over who controlled appointments to the courts. several circuits, particularly before major expansions of the appellate bench in the second half of the 20th century, there were more states than seats, so vacancies could easily give rise to interstate and intraparty disagreements over which state (and which candidate) deserved the position. Subsequent changes in the size of the courts, and other changes in federal law, allow all states to be accommodated with seats on the courts. Indeed, despite the lack of scholarly attention to the subject, Congress has expressed its interest by passing two laws that appear to constrain the president's broad nomination powers granted in the Constitution. The first (and most relevant for our purposes) was enacted in 1997 and requires that In each (other than the Federal judicial circuit) there shall be at least one judge in regular active service appointed from the residents of each state in that circuit (28 U. …