Legal scholarship highlight: Courting the president — Judges and the desire for elevation to the Supreme Court

Ryan C. Black is Associate Professor in the Department of Political Science at Michigan State University. Ryan J. Owens is Professor of Political Science in the Department of Political Science at the University of Wisconsin-Madison.

Supreme Court vacancies cause ambitious federal appellate judges to change their behavior. Court watchers, policymakers, and scholars should care about that.

The president’s recent nomination of Judge Merrick Garland to the United States Supreme Court has generated a substantial amount of news coverage across a range of important factors. First, of course, is the Senate’s decision not to hold hearings on Garland’s nomination. Second is Garland’s age. He is considerably older than the average nominee to the Supreme Court. Garland was sixty-three when nominated, making him the third-oldest nominee since 1937. Third is the fact that Garland’s nomination fails to motivate key political constituencies. Garland’s (assumed) rejection by the Senate may be unlikely to motivate any particular constituency the Democrats need to win the White House in 2016.

Yet these are not the only nomination-related issues that deserve attention. Also important is whether, to capture attention, Garland modified his behavior during this and other Supreme Court vacancies. That is, did Garland cast certain votes he might not otherwise have cast in order to signal his reliability to the president? Did he behave differently during the Supreme Court vacancy than at other times? If Garland is like virtually all other contenders for elevation to the Court, the answer is yes.

In a recent article in the American Journal of Political Science, we asked whether sitting federal appellate judges who seek elevation to the Supreme Court modify their behavior to enhance their odds of getting the nomination. The data showed that the answer clearly is yes. Judges who are possible contenders for elevation (whom we define below) significantly change their behavior at the opportune time in an effort to signal to the president that they have “the right stuff” for the Court.

We examined the voting behavior of “contender judges” and “non-contender judges.” We defined contender judges as sitting federal appellate judges who have strong reason to believe that the president is considering them for elevation. To identify these judges, we looked to the president’s “short lists.” These are lists (formal or otherwise) presidents keep and maintain to identify potential nominees to the Supreme Court should a vacancy arise. These judges may or may not know they are on the short list, but they certainly have strong reason to suspect they are under consideration. Non-contender judges are federal appellate judges who never made a president’s short list.

Our analysis benefited from the fact that the strong norm these days is to nominate Justices who come from a federal court of appeals. Indeed since 1937, nearly half of all Supreme Court nominees were sitting appeals court judges at the time. Since the Reagan presidency, seventy-three percent of all nominees were sitting federal appeals court judges. Knowing this, federal appellate judges have considerable reason to believe they might be under consideration. And, assuming they want the job, there is every reason to believe they will do what they can to be elevated.

We compared the voting behavior of contender judges (a) when there was a vacancy on the Supreme Court versus (b) when there was no vacancy on the Court. Our belief was that if these judges “court” the president and try to signal to him, they should vote differently in vacancy periods (the time between an announced departure on the Court and when the seat is filled) than in non-vacancy periods. (Our results are robust to other windows of time as well.) During vacancies, they should be more likely to vote in line with the president’s ideological position, more likely to vote for the United States as a party, and more likely to write dissenting opinions. They do precisely that. What is more, we observe none of this behavior from non-contender judges.

Consider whether the judge votes in line with the president’s ideological position. Using a matching analysis, we find that contender judges are more likely to vote in line with the president’s ideological position during vacancy periods than during non-vacancy periods. For example, a contender judge during a non-vacancy period has a forty-two-percent predicted probability of voting to support the president’s ideological position, but a fifty-one-percent predicted probability of doing so during a vacancy period. What is important to note here, again, is that these are judges who already made the president’s short list. That they go into “hyper-ideological” mode during vacancies only underscores our point that they are wooing the president.

The data also show that contender judges are more likely to vote in favor of the United States during vacancy periods than they are during non-vacancy periods. A contender judge during a non-vacancy period has a twenty-seven-percent predicted probability of voting in favor of the United States, but a fifty-four-percent predicted probability of doing so during a vacancy period. These judges do so to establish their “team credentials” and bolster their odds of elevation.

Finally, the data show that contender judges are much more likely to dissent during vacancy periods than they are during non-vacancy periods. A contender judge has an eight-percent predicted probability of dissenting during a non-vacancy period, but an eighteen-percent predicted probability of so doing during a vacancy period – a 120 percent increase. Dissenting helps these judges set their views out plainly and without compromise so that the president and the president’s staff can determine precisely where the judge stands. And so dissenting becomes a more attractive signaling tool during vacancy periods.

Whether the Senate will eventually hold hearings on the Garland nomination is unclear; also unclear are the political ramifications of the nomination – and its likely rejection. What is clear, however, is that federal appeals court judges often audition for elevation to the Supreme Court. They change their behavior because of the Supreme Court vacancy and their desire to fill it. We suggest, then, that as Court watchers discuss the normative and political implications of the Garland nomination, they also consider the broader implications of what happens when sitting judges court the president for elevation.