A federal judgeship has become the de facto route to the Supreme Court. Of the nine justices, including the recently deceased Antonin Scalia, all but one was promoted from a federal appeals court. Despite calls for considering people from elsewhere, as was common in the past, U. of I. political scientist Alicia Uribe thinks President Obama has strong motivations to continue the trend when he nominates Scalia’s replacement. Uribe’s research focuses on the politics of federal judiciary and Supreme Court appointments, and she explained her reasoning in an interview with News Bureau social sciences editor Craig Chamberlain.
Why do you think an appointment from the federal bench is so likely? What’s the drawback for Obama in bucking the trend and choosing a politician or government official – someone other than a sitting judge?
There are two main reasons to expect Obama to promote within the federal bench. The first is expertise. Political science literature has long identified the importance of qualifications in Supreme Court nominations. Nominees with better qualifications, which include experience serving as a federal judge, are more likely to be confirmed.
The second reason is more strategic. My own research points to the tradeoffs inherent in promotions within the federal judiciary, such as from an appeals court to the Supreme Court. The president and Senate do not consider these appointments in isolation. If Obama chooses to promote a judge from the Court of Appeals for the District of Columbia Circuit, for example, one consideration for the Senate, in deciding whether to confirm Obama’s nominee, is what they might be able to do in the future with a vacancy on that important court. Ultimately, the opportunity to influence a different court in the judiciary as a result of the promotion might make the Senate more likely to confirm the promoted judge.
Given the divided government and the election year, what are the most likely scenarios for how the nomination process might play out?
I think we should certainly expect Obama to name a nominee and I expect that he will do so relatively soon. As for what to expect in the Senate, there are a number of possible scenarios. First, I do not anticipate that we will see much Senate action until we have a better sense of who will win the Democratic and Republican nominations for president. Second, we should expect to see the Senate utilizing every possible procedural delay, including the filibuster and possibly even Senate Rule XXXI. Under that rule, any nomination pending before the Senate is sent back to the president for lack of Senate action whenever the Senate takes a recess longer than 30 days, which they will do this year between July and August and again in October.
Lastly, I do not think we should rule out the possibility of a Senate confirmation in the coming year, before Obama leaves office. I can see this under two different scenarios. First, if at any point the Republicans in the Senate think it possible that they will not win the White House, I think they might be willing to confirm an Obama nominee. Second, the Republicans in the Senate are counting on the public supporting their decision to block a nomination until we have a new president.
If at any point before November we start to see public sentiment shifting against the Senate on this point, we should expect to see the Senate move forward with confirming a nominee. Worst-case scenario for the Republicans would be losing both the presidency and the Senate as a result of trying to delay filling this vacancy.
The Supreme Court vacancies get the attention, but the process of filling hundreds of federal judgeships plays out in the years in between, and that’s also part of your research. Stories about that process often focus on how the opposition party, to a greater or lesser extent, works to block or delay the president’s nominees. But is it that simple? Is it party versus party, or more case-by-case?
It is a little bit of both. Obama in particular has seen intense opposition to his nominees from the Republicans in the Senate, ultimately leading to the Democrats’ implementation of the “nuclear option” in 2013, making it all but impossible for the minority party to filibuster lower court appointees.
Beyond these partisan divides, however, there is a long tradition of senatorial courtesy in terms of lower-court nominations, which leads to a lot of the delays that we ultimately see. Senators play a much more active “advice and consent” role for vacancies on lower courts, actively communicating to the president who they would like to see appointed to vacancies on courts within their states. When a senator disapproves of a nominee from their state for a district or circuit court position, the Senate will block the nomination as a matter of courtesy.