Why Obama should select Scalia's replacement from within the federal judiciary

The 10 days since Justice Antonin Scalia's passing have highlighted the process through which federal judges are nominated and confirmed.   Speculation has run wild about what type of nominee we should expect to see from President Obama, as well as when, if at all, the Senate will respond to the nomination. This vacancy, perhaps more than any other in recent history, highlights the broken system in which federal judges are selected, where disagreement between the Senate and president can lead to lengthy delays.

This type of disagreement has long led to delays in lower court nominations. The graph below shows the percentage of vacancies open in the federal judiciary for every month since the early 1980s.  Disagreement between the Senate and president often means the federal judiciary is functioning with judges serving in only about 90 to 95 percent of authorized judgeships. Under the Obama administration, this number has trended toward the 90 percent end as we have seen unprecedented delay from both the president and the Senate in terms of filling these vacancies.

Now with Scalia's passing, we are witnessing what has long been going on behind the scenes with lower court nominations on the much more public platform on which Supreme Court vacancies occur.

So is the possibility of confirmation of an Obama nomination off the table? Not necessarily. Recent posts by Matt Hitt, here and here, highlight judicial appointment research that demonstrates there is plenty a president can do in order to help increase the chances of his nominees being confirmed. My own research points to one additional tool in the president's toolbox: promoting within the judiciary. My research highlights the broader setting in which the president and Senate consider judicial nominations. As the graph above shows, the president is never making an isolated decision over vacancies in the judiciary. This means the president is always making trade-offs when selecting judges. One necessary result of these trade-offs is that we see plenty of movement of federal judges within the judiciary as a result of promotions.

Of the current members on the Supreme Court, including the recently passed Scalia, eight of the nine were promoted within the judiciary. A look at the names being discussed as possible candidates for this vacancy seems to suggest that this trend is likely to continue, with many of these potential nominees already serving in the federal judiciary: Sri Srinivasan, Paul Watford, Patricia Millett, Merrick Garland, etc.

Why should we expect to see Obama promote a judge already serving in the judiciary when filling this vacancy?  There are two main reasons. First, individuals with experience in the federal judiciary are considered better qualified, which, as we know from the work of Segal, Cover, and Cameron (1992) and its progeny, matters in terms of nominees being confirmed.

My own research points to a second reason a promotion is likely in this case. If the president promotes within the judiciary, he shifts the location of the vacancy from the Supreme Court to a lower court. This possible lower court vacancy now enters into the Senate's consideration over the nominee to the Supreme Court. If the Senate chooses to confirm the Supreme Court nominee, and the resulting vacancy on the lower court shifts that court closer to the Senate's preferences, this might influence the Senate's overall evaluation of the Supreme Court nomination. In terms of considering whether to confirm the nominee, the Senate now must consider the ideological implications to both the Supreme Court and the lower court with the new vacancy. Where this movement at the lower court is preferential to the Senate, this can help in the likelihood of confirmation.

My research shows that promotions are much more likely when the president and Senate have opposing preferences. When the president is "constrained" by the Senate, meaning that the president and the Senate prefer to see the higher court move in opposite ideological directions, the president is considerably more likely to promote from within the judiciary than when he is unconstrained. On the Supreme Court, the probability of a promotion increases from 61 percent when the president is unconstrained to 90 percent when he is constrained.

There is a more substantial increase in promotions for vacancies on the Courts of Appeals, where we more frequently see the type of disagreement between the president and members of Senate that we are currently seeing over the Scalia vacancy. For these vacancies, the probability of promotion increases from 12 percent where the president is unconstrained to 43 percent when the president is constrained. Given the current atmosphere in which President Obama is choosing a possible successor for Scalia, it is very likely, particularly given his disagreement with the leadership in the Senate, that we will see him choosing from within the federal judiciary.

References

Segal, J. A., C. M. Cameron, and A. D. Cover (1992). A Spatial Model of Roll Call Voting: Senators, Constituents, Presidents, and Interest Groups in Supreme Court Confirmations. American Journal of Political Science 36 (1), 96-121.

Alicia Uribe is an assistant professor of Political Science at the University of Illinois.

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