The Policy Consequences of Senate Involvement in the Selection of Judges in the United States Courts of Appeals

Abstract

shaping the policy output of the judicial system because they render the final judgment in a large majority of the cases which go beyond the trial courts in the federal system. In this policy-making role, scholars now generally agree that the values and attitudes of the judges on the courts of appeals influence their decision in a number of cases. Those who are involved in the selection of judges for the courts of appeals are often concerned about judicial policy making and it would be reasonable to expect them to try to assure the selection of those who hold policy values similar to their own. Several studies of the selection process indicate that most presidents are concerned with the policy values of their judicial appointees, though other factors sometimes appear to weigh more heavily in their final choice of a nominee. Moreover, presidents appear to differ in the importance they place on finding judicial nominees who hold the right policy or ideological values.2 Although most presidents show at least some concern with trying to nominate candidates who share their general policy orientation, it is less clear what motivates senators in their involvement in the selection process for judges for the courts of appeals. There have been no systematic studies of why home state senators of the president's party propose particular candidates for nomination or why they resist some of the choices of the president. For senators to influence decisively the policy values which are held by federal appeals court judges they must be able to determine what the policy values of the nominees are, they must be concerned with those values, and they must be able at least to veto any unacceptable nominees of the president. Several studies have investigated the extent to which home state senators of the president's party are able to influence the selection of nominees. Chase argues that the practice of no longer means that a home state senator of the president's party need only incant a few magic words like personally obnoxioux to block a president's nominee. Instead, he must be prepared to fight, giving his reasons for opposing the nominee (Chase, 1972: 7). Although these general considerations on the meaning of senatorial courtesy apply for all lower court nominations, there seems to be general agreement that the balance of power shifts at least slightly in the president's direction when nominations for the courts of appeals rather than the district courts are being considered (Chase, 1972: 43; Goldman, 1967: 186-214; Grossman, 1965: 27). The greater relative power of the president partially results from the fact that at least some of

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