Role of Home State Senators in the Selection
of Lower Federal Court Judges

Denis Steven Rutkus
Specialist on the Federal Judiciary
November 10, 2010
Congressional Research Service
7-5700
www.crs.gov
RL34405
CRS Report for Congress
P
repared for Members and Committees of Congress

Role of Home State Senators in the Selection of Lower Federal Court Judges

Summary
Supported by the custom of “senatorial courtesy,” Senators of the President’s party have long
played, as a general rule, the primary role in selecting candidates for the President to nominate to
federal district court judgeships in their states. They also have played an influential, if not
primary, role in recommending candidates for federal circuit court judgeships associated with
their states. For Senators who are not of the President’s party, a consultative role, with the
opportunity to convey to the President their views about candidates under consideration for
judgeships in their states, also has been a long-standing practice—and one supported by the “blue
slip” procedure of the Senate Judiciary Committee.
Senators, in general, exert less influence over the selection of federal circuit court nominees than
they do over district court nominee selection. Whereas home state Senators of the President’s
party often dictate whom the President nominates to district judgeships, their recommendations
for circuit nominees, by contrast, typically compete with names suggested to the Administration
by other sources or generated by the Administration on its own.
Whether and how a state’s two Senators share in the judicial selection role will depend, to a great
extent, on their respective prerogatives, party affiliations, and interests. Senators have great
discretion as to the procedures they will use to identify and evaluate judicial candidates, ranging
from informally conducting candidate searches on their own to relying on nominating
commissions to evaluate candidates. Contact between a Senator’s office and the Administration
can be expected to clarify the nature of the Senator’s recommending role, including the degree to
which the Administration, in its judicial candidate search, will rely on the Senator’s
recommendations.
If a President selects a district or circuit court nominee against the advice of, or without
consulting, a home state Senator, the latter must decide whether to oppose the nomination (either
first in the Senate Judiciary Committee or later on the Senate floor). From the Senator’s
standpoint, opposition to the nomination might serve a number of purposes, including helping to
prevent confirmation or influencing the Administration to take consultation more seriously in the
future. On the other hand, various considerations might influence the Senator not to oppose the
nomination, including the desirability of filling the vacant judgeship as promptly as possible, the
qualifications of the nominee, and, if more home state vacancies are possible in the future,
whether these might provide the Senator a better opportunity for exerting influence over judicial
appointments.
In recent years, the role of home state Senators in recommending judicial candidates has given
rise to various issues, including the following: What constitutes “good faith” or “serious”
consultation by the Administration? Should home state Senators always have the opportunity to
provide their opinion of a judicial candidate before he or she is nominated? How differently
should the Administration treat the input of Senators, depending on their party affiliation? What
prerogatives should home state Senators have in the selection of circuit court nominees? Should
the policy of the Judiciary Committee allow a home state Senator to block committee
consideration of a judicial nominee? Should the Judiciary Committee and the Senate, as matter of
courtesy, approve judicial nominees supported by home state Senators? Should home state
Senators use commissions to aid them in selecting judicial candidates to recommend to the
President?
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Role of Home State Senators in the Selection of Lower Federal Court Judges

Contents
Introduction ................................................................................................................................ 1
Background and Origins of Senators’ Recommending Role ......................................................... 3
The Senate’s Exercise of “Advice and Consent” .................................................................... 3
Role for Senators in Selecting Nominees Linked to Their States ............................................ 4
Senatorial Courtesy............................................................................................................... 5
Blue Slip Policy of Senate Judiciary Committee .................................................................... 9
Senators’ Party Affiliations and Their Recommending Role....................................................... 12
When One Senator Is of the President’s Party...................................................................... 12
When Both Senators Are of the President’s Party................................................................. 15
When Neither Senator Is of the President’s Party................................................................. 16
The Customary Model: Officials in the State Who Are of the President’s Party
Play the Primary Recommending Role ....................................................................... 16
Exceptions to the Customary Model, Where Senators Play a Primary
Recommending Role.................................................................................................. 18
Lesser Role for Senators When Recommending Circuit Court Candidates ................................. 21
Lesser Role Well Established by Custom............................................................................. 21
Senators’ Prerogatives in Circuit Nominee Selection ........................................................... 24
Role of Senators If State Representation is Changed............................................................ 25
Selecting Judicial Candidates to Recommend ............................................................................ 26
Learning of the Vacancy...................................................................................................... 26
Relationship with the Other Home State Senator ................................................................. 27
First Option: Only One Senator Would Be Actively Involved in Selecting Judicial
Candidates ................................................................................................................. 27
Second Option: The Two Senators Apportion between Themselves the Selection
of Candidates ............................................................................................................. 28
Third Option: The Two Senators Work Together in Selecting Each Candidate................ 28
Criteria Used to Select Judicial Candidates.......................................................................... 28
Procedures Used to Identify and Evaluate Candidates.......................................................... 31
Interaction with Administration During Nominee Selection Process .......................................... 35
Administration Entities and Their Roles .............................................................................. 35
Clarifying the Senator’s Role .............................................................................................. 38
Consultation at Different Stages of the Process.................................................................... 41
When a Nominee Is Selected against the Advice of, or Without Consulting, a Senator ............... 42
Option of Opposing the Nomination in Committee or on the Senate Floor ........................... 43
Option of Not Opposing the Nomination ............................................................................. 46
Current Issues and Concluding Observations............................................................................. 47
Wide Acceptance of Importance of Pre-Nomination Consultation........................................ 47
Recent Controversies over Administrations’ Consultation with Senators .............................. 48
During the Clinton Presidency....................................................................................... 49
During the Bush Presidency .......................................................................................... 49
During the Obama Presidency ....................................................................................... 53
Specific Issues Concerning the Recommending Role of Home State Senators...................... 55
What Constitutes “Good Faith” or “Serious” Consultation? ........................................... 55
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Role of Home State Senators in the Selection of Lower Federal Court Judges

Should Home State Senators Always Have the Opportunity to Provide Their
Opinion of a Judicial Candidate Before He or She Is Nominated?............................... 55
How Differently Should the Administration Treat the Input of Senators,
Depending on Their Party Affiliation? ........................................................................ 56
What Prerogatives Should Home State Senators Have in the Selection of Circuit
Court Nominees? ....................................................................................................... 58
Should the Policy of the Judiciary Committee Allow a Home State Senator to
Block Committee Consideration of a Judicial Nominee? ............................................ 59
Should the Judiciary Committee and the Senate, as a Matter of Courtesy to
Colleagues, Approve Judicial Nominees Supported by Home State Senators?............. 60
Should Home State Senators Use Commissions to Aid Them in Selecting Judicial
Candidates to Recommend to the President?............................................................... 61
Consultation Between the President and Home State Senators in the Current
Environment .................................................................................................................... 64

Figures
Figure 1. Geographic Divisions of U.S. District and Circuit Courts.............................................. 3

Contacts
Author Contact Information ...................................................................................................... 66

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Role of Home State Senators in the Selection of Lower Federal Court Judges

Introduction
This report examines the role played by Senators in the selection of nominees to two kinds of
lower federal court judgeships. Specifically, the judgeships in question, over which Senators have
historically played a role in nominee selection, are those (1) in the U.S. district courts lying
geographically within the Senators’ states and (2) in the U.S. court of appeals circuits of which
the Senators’ states are a geographic part.1
By long-standing custom, Senators of the President’s party, as a general rule, have played the
primary role in selecting candidates for the President to nominate to federal district court
judgeships in their states. They also generally have played an influential, if not primary, role in
recommending candidates for federal circuit court judgeships associated with their states. For
Senators who are not of the President’s party, a consultative role, with the opportunity to convey
to the President their views about candidates under consideration for judgeships in their states,
has been a long-standing practice as well.
In recent years, however, the role to be played by “home state Senators” in the selection process
for lower court judges has periodically been the subject of debate. With controversy frequently
arising in the Senate over whether that body should confirm various of the President’s judicial
nominees,2 part of the contention sometimes has involved the question of whether, or to what
degree, Senators should play a role in advising the President on whom to select as judicial
nominees from their states.3 To assist in examining that question, this report provides an analysis
of the role that home state Senators, historically and in the contemporary era, have played in the
lower court selection process.
In separate sections this report discusses:
• the historical origins of the role of Senators recommending persons for
nomination to lower court judgeships—particularly, the custom of “senatorial

1 This report, it should be noted, does not cover the role played by Senators in the selection of persons nominated by the
President to be U.S. attorneys or U.S. marshals in the Senators’ states. Also outside the scope of this report are the
selection processes for nominees to district or circuit courts in jurisdictions not geographically connected to states (and
thus not represented by Senators). Specifically, not examined herein are the selection processes for nominees to the
U.S. District Court for the District of Columbia, the U.S. Court of Appeals for the District of Columbia Circuit, the
U.S. District Court for the District of Puerto Rico, the territorial district courts, and the U.S. Court of Appeals for the
Federal Circuit (a court which is headquartered in Washington, D.C., and has nationwide jurisdiction defined by subject
matter).
2 See, for example, “Acrimony Reigns over Judicial Picks,” in CQ Almanac Plus, 2002, vol. 58 (Washington:
Congressional Quarterly Inc., 2003), pp. 13.12-13.13; “Judicial Nominee Battles Intensify,” in CQ Almanac Plus,
2003
, vol. 59 (Washington: Congressional Quarterly Inc., 2004), p. 13.19; “Acrimony over Judges Continues,” in CQ
Almanac Plus, 2004
, vol. 60 (Washington: Congressional Quarterly Inc., 2005), pp. 12.15-12.16; “‘Gang of 14’ Averts
Judicial Showdown,” in CQ Almanac Plus, 2005, vol. 61 (Washington: Congressional Quarterly Inc., 2006), pp. 14.8-
14.9; Sheldon Goldman et al., “Picking Judges in a Time of Turmoil: W. Bush’s Judiciary During the 109th Congress,”
Judicature, vol. 90, May-June 2007, pp. 252-283. (Hereafter cited as Goldman et al., “Picking Judges.”); and Seth
Stern, “Bench-Clearing Brawl Continues,” CQ Weekly, vol. 68, September 27, 2010, pp. 2213.
3 See, in this vein, a discussion by judicial appointments scholars in 2005 of “the debate over the scope of consultation
that the [George W.] Bush White House has and should have with senators, presumably of any political stripe.... ”
Sheldon Goldman et al., “W. Bush’s Judiciary: The First Term Record,” Judicature, vol. 88, May-June 2005, p. 249.
(Hereafter cited as Goldman et al., “W. Bush’s Judiciary: The First Term Record.”)
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courtesy” and the Senate Judiciary Committee’s long-standing “blue slip”
procedure;
• the effect of Senators’ political party affiliation on their role as recommenders of
judicial candidates from their state;
• the lesser role that Senators generally play when recommending circuit court, as
opposed to district court, candidates;
• the process by which Senators evaluate and select judicial candidates;
• Senators’ contacts with a President’s Administration after they make their
recommendations but before the President selects a nominee;
• the options available to home state Senators when the President selects a judicial
nominee against their advice, or without consulting them; and
• issues that have arisen in recent years over the proper role, and degree of
influence, for home state Senators in the selection of nominees for U.S. district
and circuit court judgeships.
Before proceeding with these sections, however, Figure 1, below, provides a visual overview of
the judicial districts in each Senator’s state and the judicial circuit of which the Senator’s state is a
part. Figure 1 does so, for the judicial districts, by showing the geographic boundaries for the 89
district courts that lie within the 50 states.4 Dotted lines within a state indicate the division of that
state into two or more judicial districts, showing the geographic areas the districts cover in the
state.5 The absence of dotted lines within a state, on the other hand, indicates that the state
comprises one undivided judicial district.6 (For an alphabetical listing of the 50 states, indicating
which states have multiple judicial districts as well as the number of authorized judgeships for
each of the districts, see 28 U.S.C. § 133.) Courts within the U.S. courts of appeals system are
divided geographically into 11 enumerated circuits, with each of these circuit courts including at
least three states. Figure 1 shows the states (as well as, in some cases, U.S. territories) located
within each of the enumerated circuits by the different areas of shading associated with the circled
numbers 1 through 117.


4 Also shown in the map are the judicial districts for the District of Columbia, the Commonwealth of Puerto Rico, and
the territories of Guam, the Virgin Islands, and the Northern Mariana Islands.
5 For a complete listing, by state, of the counties within each judicial district, see 28 U.S.C. §§ 81-131.
6 Specifically, 25 states have one judicial district each, while the other 25 states have 2 or more judicial districts, with
the 3 most populous states—California , New York, and Texas—each having 4. Each district court has from 2 to 28
federal district judgeships. With 2 judgeships each are the U.S. District Courts for the Districts of Idaho, Northern
Iowa, North Dakota, Vermont, and Western Wisconsin. With the most judgeships are the U.S. District Courts for the
Districts of Southern New York (28), Central California (27), Northern Illinois (22), and Eastern Pennsylvania (also
22).
7 In the following pages, nominations to court of appeals judgeships are referred to as circuit court nominations, and the
courts are referred to as circuit courts.
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Role of Home State Senators in the Selection of Lower Federal Court Judges

Figure 1. Geographic Divisions of U.S. District and Circuit Courts

Source: Administrative Office of the United States Courts.
Note: There is also a 12th geographical y based U.S. circuit court of appeals, in the District of Columbia.
Background and Origins of Senators’
Recommending Role

The Senate’s Exercise of “Advice and Consent”
The President’s appointments of judges in the federal court system are made subject to the
approval of the Senate.8 These appointments take place through a process, provided for in the
Constitution, in which the President nominates and appoints persons to federal office “by and

8 Subject to Senate confirmation, the President makes judicial appointments to the following federal courts—the
Supreme Court of the United States, U.S. Circuit Courts of Appeals, U.S. District Courts (including the Territorial
courts), U.S. Court of International Trade, U.S. Court of Federal Claims, U.S. Tax Court, U.S. Court of Appeals for
Veterans Claims, and U.S. Court of Appeals for the Armed Forces. (Regarding the role played by Senators in the
appointment of Supreme Court Justices, see CRS Report RL31989, Supreme Court Appointment Process: Roles of the
President, Judiciary Committee, and Senate
, by Denis Steven Rutkus.) The President also appoints, subject to Senate
confirmation, judges to two local courts—the Superior Court of the District of Columbia and the District of Columbia
Court of Appeals.
Federal judges whom the President does not appoint include the following: bankruptcy judges (appointed by the U.S.
Courts of Appeals); administrative law judges (appointed by federal executive agencies); magistrates (appointed by the
U.S. District Courts); and trial and intermediate court judges in the Armed Forces (appointed by the Judge Advocate
General in each military service).
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with the Advice and Consent of the Senate.”9 Exceptions to this rule are the relatively rare
judicial appointments which the President alone makes, without the requirement of Senate
approval, through his power, under the Constitution, to make temporary “recess appointments.”10
The Senate most visibly exercises its “advice and consent” role with respect to judicial
appointments when Senators vote on a nomination—either in committee (on whether to report the
nomination to the Senate) or on the Senate floor (on whether to confirm).11 Another significant,
though less public, exercise of Senate “advice and consent” on judicial nominations, it can be
argued, occurs when individual Senators provide actual advice to the President on whom to
nominate to particular federal judgeships. By long-standing custom, dating back to the early
1800s, Senators of the President’s party, in their capacity as home state Senators, have regularly
provided Presidents such advice, recommending candidates for judgeships situated in their states
or linked by tradition to their states. For Senators who are not of the President’s party, a
consultative role, with the opportunity to convey to the President their views about candidates
under consideration for judgeships in their states, also has been a long-standing practice.
Role for Senators in Selecting Nominees Linked to Their States
Technically, each Senator is free to recommend candidates for any federal judgeship to be filled
by presidential nomination. In reality, however, the ability of Senators to have their judicial
recommendations heeded by a President will, in most cases, depend on the judgeship in question
having a geographic link to the Senators’ own state. A Senator, for instance, rarely will be able to
exert influence on behalf of a judicial candidate for a geographically based court, such as a U.S.
district court or a U.S. court of appeals, if the court is not geographically all or in part within the
Senator’s state. Similarly, most Senators, on any particular occasion, might have little basis on
which to make judicial recommendations for a nationwide court of specialized subject matter
jurisdiction (such as the Tax Court or the Court of Appeals for Veterans Claims), unless they are
members of a Senate committee having jurisdiction over the court, have expertise in the court’s
subject matter, or have some other special interest in the court.12

9 Article II, Section 2, Clause 2. In fuller part, Clause 2 provides that the President “shall nominate, and by and with the
Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the
supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for,
and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers,
as they think proper, in the President alone, in the Court of Law, or in the Heads of Departments.”
10 Specifically, Article II, Section 2, Clause 3 of the U.S. Constitution empowers the President “to fill up all Vacancies
that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next
Session.” Since the first Administration of George Washington, Presidents have made more than 300 recess
appointments to the federal judiciary, including 12 to the Supreme Court. See Henry B. Hogue, “The Law: Recess
Appointments to Article III Courts,” Presidential Studies Quarterly, vol. 32, September 2004, pp. 656-673; CRS
Report RL32971, Judicial Recess Appointments: A Legal Overview, by T. J. Halstead; and CRS Report RS21308,
Recess Appointments: Frequently Asked Questions, by Henry B. Hogue, who notes that Presidents “have long made
recess appointments to the federal judiciary” but that “in recent years ... recess appointments of federal judges have
been unusual and controversial.”
11 A Senate vote to confirm requires a simple majority of Senators voting, a quorum being present. See CRS Report
RL31980, Senate Consideration of Presidential Nominations: Committee and Floor Procedure, by Elizabeth Rybicki
(under heading “Consideration and Disposition”). This quorum requirement is derived from Article I, Section 5, Clause
1 of the U.S. Constitution, which states in part that “a Majority of each [House] shall constitute a Quorum to do
Business.... ” Hence, the quorum for conducting business in a Senate of 100 Members is 51 Senators.
12 Writing in 1953, a scholar noted that the President had “wider discretion” in the selection of judges to such
specialized courts as the Tax Court and the Customs Court [now the U.S. Court of International Trade], as well as to
(continued...)
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By contrast, every U.S. Senator makes recommendations or in some way is consulted about
potential candidates for judgeships in (1) the U.S. district court or courts which geographically
fall within the Senator’s state, and (2) the U.S. court of appeals “circuit” of which the Senator’s
state is a geographic part—provided the circuit judgeship historically has been filled by a resident
of the Senator’s state. For these judgeships, long-standing Senate customs, as well as norms in
Senate-presidential relations, govern, to a great extent, the role of individual Senators in the
appointment process. The two most important of these customs arguably are “senatorial courtesy”
and the “blue slip” practice of the Senate Judiciary Committee.
Senatorial Courtesy
Dating back to 1789, senatorial courtesy, as defined by one authority, is the “Senate’s practice of
declining to confirm a presidential nominee for an office in the state of a senator of the
president’s party unless that senator approves.”13 “In our day,” another scholar has written,
“senatorial courtesy has come to mean that senators will give serious consideration to and be
favorably disposed to support an individual senator of the president’s party who opposes a
nominee to an office in his state.” This scholar noted, however, that, as the practice of senatorial
courtesy had evolved in the contemporary period, the Senate could not be expected to
automatically support a Senator opposing a nomination if “his reasons are not persuasive to other
senators or if he is not a respected member of the Senate.”14
The custom of senatorial courtesy provides the foundation for a special role in the nomination and
confirmation process for a Senator of the President’s party, whenever a presidential nomination is
for a federal office in the Senator’s state. The Senator’s role is essentially a negative one in those
relatively rare instances when the Senator opposes, and thereby seeks to block, a nominee’s
confirmation. In these situations, the Senator, by invoking senatorial courtesy, ordinarily can look
to the rest of the Senate’s Members to join the Senator in opposing the nomination. Much more
frequently, however, the Senator’s role is positive in nature when, periodically, he or she engages
in making recommendations to the President about whom to nominate to federal offices in the
Senator’s state. In these situations, the custom of senatorial courtesy, it can be argued, encourages
the President to be receptive to the Senator’s recommendations—rather than risk selecting
nominees opposed not only by the Senator, but by the Senate as a whole, united in support of its
colleague.

(...continued)
federal courts in the District of Columbia and the Territorial Courts, than he did in selecting U.S. district court
nominees in each of the states, “for members of the Senate may not claim the right to dictate these appointments though
they often press for the appointment of their candidates.” Joseph P. Harris, The Advice and Consent of the Senate
(Berkeley: University of California Press, 1953; reprint, New York: Greenwood Press, 1968), p. 314 (page citation
here, and in subsequent footnotes, is to the reprint edition). (Hereafter cited as Harris, Advice and Consent.)
Subsequently, in 1972, another scholar wrote: “In appointing judges to the District Court of the District of Columbia,
the Court of Appeals for the District of Columbia, the United States Court of Customs and Patent Appeals, the United
States Court of Claims, and the United States Customs Court, the power of the individual senator is further diminished
in favor of the president’s men. Since the selection for those posts can be made from any state in the union, any one
senator’s claim to an appointment cannot be very strong.” Harold W. Chase, Federal Judges; The Appointing Process
(Minneapolis: University of Minnesota Press, 1972), p. 45. (Hereafter cited as Chase, Federal Judges.)
13 Walter Kravitz, Congressional Quarterly’s American Congressional Dictionary, 3d ed. (Washington: Congressional
Quarterly Inc., 2001), p. 231.
14 Chase, Federal Judges, p. 7.
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The precedent of senatorial courtesy, according to Joseph P. Harris, in his landmark study, The
Advice and Consent of the Senate,
15 was set in 1789. Congress had been in session for only three
months of its first term when the Senate rejected its first presidential nominee—one Benjamin
Fishbourn, whom President George Washington had nominated to the post of naval officer of the
Port of Savannah. Though Fishbourn apparently had excellent qualifications for the position, the
Senate rejected the nomination as a courtesy to the two Senators from Georgia, who had a
candidate of their own. The next day, Washington withdrew the Fishbourn nomination and
nominated the candidate desired by the two Georgia Senators.
In the Fishbourn episode, the courtesy that the Senate’s Members as a whole extended to their
two colleagues from Georgia—by rejecting the nomination that the two Senators opposed—was
an important precedent. As Harris explained:
The Fishbourn case initiated the custom which requires the President to consult with the
senators from the state in which a vacancy occurs, and to nominate a person acceptable to
them; if he fails to do so, the Senate as a courtesy to these senators will reject any other
nominee regardless of his qualification. The custom is usually invoked, however, only by
senators of the same party as the President. It did not become firmly established in
Washington’s administration, for he continued to hold to the doctrine that the power of
nomination belonged exclusively to the President and continued to consult widely in making
his selections. Under later Presidents with less prestige, less force of character and less
determination, the rule became firmly established with respect to senators of the same
political party as the President. 16
Harris, writing in 1953, described what was then the “well-established custom, which has
prevailed since about 1840,” wherein U.S. district judges “are normally selected by senators from
the state in which the district is situated, provided they belong to the same party as the President.”
(By contrast, the President was said to have “a much freer hand in the selection of judges to the
circuit courts of appeal, whose districts cover several states.”17) Another scholar, less than a
decade earlier, in 1944, had described as near-absolute the power of home state Senators of the
President’s party to select district court nominees. The Senate, he maintained, had “expropriated
the President’s power of nomination so far as concerns appointments of interest to senators of the
party in power; and the President has virtually surrendered his power directly to local party
politics as to appointments in states where the senators are of the opposition.”18
According to two other scholars, Senators, from the very beginning, “recognized that judgeships
could be used effectively to reward loyal supporters back home.” Senators also realized:
that it would be damaging to their prestige if the President appointed to a judgeship within
their own state someone of whom they disapproved. As a result, senators joined together to

15 Harris, Advice and Consent, pp. 40-41. For more on Senate precedents and senatorial courtesy, see also Floyd M.
Riddick and Alan S. Frumin, Riddick’s Senate Procedure, 101st Cong., 2nd sess., S. Doc. 101-28 (Washington: GPO,
1992), pp. 951-952.
16 Ibid., p. 41
17 Ibid, p. 314.
18 Evan Haynes, The Selection and Tenure of Judges (Newark, NJ: National Conference of Judicial Councils, 1944), p.
23.
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protect their individual interests in judicial appointments. The custom of “senatorial
courtesy” grew out of these considerations.19
In the latter half of the 20th century, it continued to be common for Senators to regard their role in
the appointment of U.S. district judges as more in the nature of selection than of recommendation.
In 1977, former Senator Joseph W. Tydings (D-MD) wrote that selection of a U.S. district judge
“is a power jealously guarded by many senators. It is an extremely important source of political
patronage, and many senators consider judicial selection to be one of the duties they were elected
to perform.”20 In 1989, similar sentiments were expressed by Senator Thad Cochran (R-MS) amid
a controversy involving the reluctance of President George H. W. Bush to nominate to a Vermont
district judgeship a candidate recommended by Senator James M. Jeffords (R-VT). “As a matter
of custom and tradition in the Senate,” Senator Cochran declared, “the senators of the president’s
party’s recommendations for district court judgeships have been tantamount to selection of that
nominee,” adding that selecting judicial nominees was “one of the few patronage positions that
senators have” outside their staffs.21 Echoing Senator Cochran’s views, the Senate Republican
Conference, it was reported, “went to Jeffords’ defense with a resolution asking conference
chairman John H. Chafee (R-RI) to advise President Bush of the senators’ support for Jeffords’
choice.”22 Ultimately, the candidate recommended by Senator Jeffords was nominated by
President Bush and confirmed by the Senate by a voice vote.23
The view of many Senators, in other words, has been that the President should defer to Senators
of the President’s party in the selection of home state judicial appointees, rather than vice versa.
This view is reinforced by the custom of senatorial courtesy, in which the Senate as a collegial
body customarily supports Senators of the President’s party in disputes with the President over
judicial appointments in their state.24 The custom serves as an inducement to the President to try
to reach accommodation with home state Senators, rather than risk Senate rejection of a nominee
whom they oppose. As a result, Presidents rarely go forward with a nomination for a district court
judgeship if a home state Senator of the President’s party has indicated beforehand a readiness to
oppose the nominee in the Senate.25

19 Larry C. Berkson and Susan B. Carbon, The United States Circuit Judge Nominating Commission: Its Members,
Procedures and Candidates
(Chicago: American Judicature Society, 1980), p.12.
20 Joseph W. Tydings, “Merit Selection for District Judges,” Judicature, vol. 61, September 1977, p. 113. (Hereafter
cited as Tydings, “Merit Selection.”) By contrast, he noted (also at p. 113), “no single senator automatically controls”
each circuit court of appeals judgeship, because each appellate court “generally covers several states.”
21 Ruth Marcus, “GOP Senators Feud with Administration over Naming Judges,” The Washington Post, November 23,
1989, p. A6. (Hereafter cited as Marcus, “GOP Senators Feud.”)
22 Ibid.
23 See Walter R. Mears, “A Battle of Wills over Picking Federal Judges,” Associated Press, August 16, 1990, accessed
at http://www.lexisnexis.com.
24 In some scholarly works, senatorial courtesy also has come to be synonymous with presidential deference to Senators
over federal appointments in their states. See, for example, Michael J. Gerhardt, The Federal Appointments Process; A
Constitutional and Historical Analysis
(Durham, NC: Duke University Press, 2000), p. 143: “Traditionally, the term
senatorial courtesy has referred to the deference the president owes to the recommendations of senators from his own
political party on the particular people whom he should nominate to federal offices in the senators’ respective states.”
(Emphasis in original.)
25 Occasionally, however, Presidents have selected district court nominees over the public opposition of home state
Senators of the President’s party, usually (but not always) with unhappy results for the Presidents and the nominees. In
1939, over the objections of Virginia’s two Democratic Senators, President Franklin D. Roosevelt nominated Floyd H.
Roberts to a judgeship on the U.S. District Court for the Western District of Virginia. The nomination ultimately was
rejected by the Senate 72-9. See Harris, Advice and Consent, pp. 231-234. By contrast, in 1947 President Harry S
(continued...)
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The role of home state Senators of the President’s party, however, is no longer one of
unquestioned power to select district court nominees, as it has been generally portrayed in the
past. A judicial appointments scholar observed in 1972 that “even granting that senators of the
party in power may have ‘owned’ district judgeships at an earlier time in our history, they have
not during the incumbency of the presidents since Truman.”26 In recent decades, Senators, when
recommending judicial candidates, increasingly have found it necessary to accommodate new
demands or calls from the President, which have made their selection power less absolute. For
instance, recent Presidents have insisted that candidates whom Senators recommend for district
judges, besides having necessary professional qualifications, meet other criteria of particular
importance to the President27 or that the Senators submit a number of candidates for a vacant

(...continued)
Truman succeeded in having the nomination of Joe B. Dooley to the U.S. District Court for Northern Texas confirmed,
over the objection of the junior Democratic Senator of Texas, W. Lee O’Daniel. (The Senator had been in disagreement
with Texas’s senior Senator, Tom Connally, also a Democrat, who had recommended the nominee.) The nomination
was approved by the Senate Judiciary Committee by a 8-4 vote and confirmed by the Senate by a vote of 48-36.
Sheldon Goldman, Picking Federal Judges: Lower Court Selection from Roosevelt Through Reagan (New Haven, CT:
Yale University Press, 1997), p. 80. (Hereafter cited as Goldman, Picking Federal Judges.) Subsequently, however,
President Truman was unsuccessful when he transmitted four other district court nominations to the Senate, all over the
objections of home state Senators of his party. The nominations in question—one each to the judicial districts of
Northern Georgia and Southern Iowa in 1950, and two to the judicial district of Northern Illinois in 1951—were
rejected by the Senate in voice votes. See again Harris, Advice and Consent, p. 221 (for the Georgia and Iowa district
nominations) and pp. 321-323 (for the Illinois district nominations).
More recently, in 1976, President Gerald R. Ford, a Republican, nominated William B. Poff to the U.S. District Court
for the Western District of Virginia over the objection of a home state Senator of the President’s party. The Senator
invoked senatorial courtesy, and the Senate Judiciary Committee tabled the nomination. A month later, President Ford
withdrew the nomination (after receiving a letter from the nominee, who asked that his nomination be withdrawn
because of the Senator’s invocation of senatorial courtesy). Goldman, Picking Federal Judges, p. 210. See also Bob
Rankin, “‘Senatorial Courtesy’ Derails Ford Judgeship Nomination,” Congressional Quarterly Weekly Report, vol. 34,
May 8, 1976, pp. 1123-1125.
In 1980, President Jimmy Carter, a Democrat, nominated James E. Sheffield to the U.S. District Court for the Eastern
District of Virginia, over the objection of Senator Harry F. Byrd Jr. of Virginia. Although Senator Byrd, formerly a
Democrat, had become an Independent, he remained a member of the Senate’s Democratic caucus, and was treated as a
Democrat by President Carter for judicial selection purposes. (When President Carter, earlier in his presidency, wrote a
letter to Democratic Senators, requesting that they appoint merit commissions to select candidates for vacant district
judgeships in their states, he included Senator Byrd on his list.) Although the Sheffield nomination received a hearing
by the Senate Judiciary Committee, controversy arose over the nominee’s personal finances, as well as over the Carter
Administration’s efforts to persuade Senator Byrd to add more names to the list of candidates he had recommended for
vacant Virginia judgeships. The Sheffield nomination received no further action in the Senate and was returned to the
President in December 1980 upon the final adjournment of the 96th Congress. See “Sen. Byrd Pledges To Oppose
Carter on Judge Choice,” The Washington Post, April 17, 1980, p. C2; Karlyn Barker, “Tax Inquiry Snarls Hearings on
Carter Nominee to Bench,” The Washington Post, August 27, 1980, p. A1; Donald P. Baker and Glenn Frankel, “A
Litany of Mistakes; White House Defeated, Embarrassed in Fight To Appoint Black Va. Judge; Fight for Black Judge
Embarrasses Carter,” The Washington Post, September 21, 1980, p. A1; Goldman, Picking Federal Judges, pp. 262-
264.
26 Chase, Federal Judges, p.12. “It does not necessarily follow,” Chase continued, “that because individual senators
may well be in a position to exercise a veto power in the appointment of judges they must do the appointing. Close
examination of the appointment process suggests otherwise.” Ibid., p. 13.
27 For instance, in an executive order signed on November 8, 1978, President Jimmy Carter specified (thus signaling to
home state Senators) that, among the standards he would use to determine a person’s fitness to serve as a district judge
was whether the person possessed a “demonstrated commitment to equal justice.” Also, under the order, the Attorney
General, before recommending a district court candidate to the President, would consider whether an “affirmative
action” had “been made, in the case of each vacancy, to identify candidates, including women and members of minority
groups.” U.S. President (Carter), “Standards and Guidelines for the Merit Selection of United States District Judges,”
Executive Order 12097, Federal Register, vol. 43, November 13, 1978, p. 52455. (Executive order revoked by
(continued...)
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judgeship, rather than only the name of the one candidate they most favor.28 Further, one recent
President (Jimmy Carter), through forceful advocacy, persuaded nearly all of the home state
Senators of his party to establish nominating commissions for the selection of district court
judges. In so doing, the Senators relinquished a substantial part of their traditional role in
recruiting, evaluating, and recommending district court candidates.29 Subsequent Presidents,
however, did not insist, as President Carter did, that Senators use nominating commissions to
select district court candidates, and over the next few decades their use was discontinued by most
Senators. Nonetheless, the last three years have witnessed somewhat of a comeback for
nominating commissions, with almost one-third of the Senate’s Members recently reported to be
using them.30
Blue Slip Policy of Senate Judiciary Committee
Senatorial courtesy, as has been shown, historically has contemplated a role for Senators of the
President’s party in providing advice to the President on nominees—but not necessarily a role for
opposition party Senators. Nevertheless, even when neither of a state’s Senators is of the
President’s party, a consultative role is contemplated, if not mandated, for them in the
appointment process by means of the Senate Judiciary Committee’s “blue slip” policy. Under the
committee’s blue slip policy, as it has evolved in recent decades, the Judiciary Committee has
come to expect that, as a courtesy, a state’s Senators, no matter what their party affiliation, will be

(...continued)
President Ronald Reagan on February 25, 1986. See “Executive Orders Disposition Tables,” at
http://www.archives.gov/federal-register/codification/executive-orders-16.html.) During the presidency of Ronald
Reagan, the Administration’s evaluation of judicial candidates was, as a matter of policy, concerned not only with
intellectual ability, legal experience, and judicial temperament, but also “with an individual’s overall judicial
philosophy and concept of the judicial role.” Sheldon Goldman, “Reagan’s Second Term Judicial Appointments: The
Battle at Midway,” Judicature, vol. 70, April-May 1987, p. 326. During the presidency of George W. Bush, a
Department of Justice official involved in the process of evaluating candidates for lower court judgeships spoke of the
President’s “mandate to us”—namely, “that the men and women who are nominated by him to be on the bench have his
vison of the proper role of the judiciary. That is, a judiciary that will follow the law, not make the law, a judiciary that
will interpret the constitution, not legislate from the bench.” Sheldon Goldman et al., “W. Bush Remaking the
Judiciary: Like Father Like Son?”, Judicature, vol. 86, May-June 2003, p. 284. (Hereafter cited as Goldman et al., “W.
Bush Remaking the Judiciary.”)
28 A 1996 study noted that “during the administration of Democratic President Jimmy Carter, home state senators were
asked for more than one name for each district court vacancy in their state. That practice and other presidential attempts
to curb senatorial patronage over lower federal court judgeships continued under Republican Presidents Ronald Reagan
and George [H. W.] Bush,” although “with limited success.” Miller Center Commission on the Selection of Federal
Judges, Improving the Process of Appointing Federal Judges: A Report of the Miller Center Commission on the
Selection of Federal Judges
(Charlottesville, VA: Miller Center of Public Affairs, University of Virginia, 1996), p. 4.
29 See Alan Neff, The United States District Judge Nominating Commissions: Their Members, Procedures and
Candidates
(Chicago: American Judicature Society, 1981), 203 p. (Hereafter cited as Neff,United States District Judge
Nominating Commissions
.) See also Charles W. Hucker, “Report Card on Judicial Merit Selection,” Congressional
Quarterly Weekly Report
, vol. 37, February 3, 1979, pp. 189-191. President Carter’s advocacy, one news report noted,
included issuance of an executive order “urging senators to voluntarily forego their patronage prerogatives and
establish commissions for the selection of U.S. district court judges on the basis of merit.” Alan Berlow, “Carter Order
Raises Doubts Whether Judges Will Be Selected on Merit Basis,” Congressional Quarterly Weekly Report, vol. 36,
November 18, 1978, p. 3313.
30 The current use of outside nominating commissions by some Senators to evaluate and recommend judicial candidates
is discussed in more detail later in this report, under the heading “Procedures Used to Identify and Evaluate
Candidates.”

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consulted by the Administration prior to the President nominating persons to U.S. district
judgeships in the state as well as to U.S. circuit court judgeships historically associated with the
state.
The blue slip policy of the Senate Judiciary Committee, as set by its chair, dates back at least to
1917.31 Under this policy, the committee chair seeks the assessment of Senators regarding district
court, circuit court, U.S. attorney, and U.S. marshal nominations in their state. In practice, the
chair sends a blue-colored form to home state Senators regarding these nominations. If a home
state Senator has no objection to a nominee, the blue slip is returned to the chair with a positive
response; however, if a Senator has some objection to the nominee and wants to stop or slow
committee action, he or she can decide not to return the blue slip or to return it with a negative
response.32 Some, but not all, chairs of the Judiciary Committee have required a return of a
positive blue slip by both of a state’s Senators before allowing consideration of a nomination.
For more than two decades, from 1956 through 1978, when a Senator returned a negative blue
slip or failed to return a blue slip for a judicial nomination, it was the policy of the committee
chair, in deference to the Senator, to decline to schedule a hearing or other committee action on
the nomination.33 In other words, a home state Senator, by not returning a blue slip or by
returning it with a negative response, could halt all further action on a nominee from the state.
This policy, in effect, gave Senators of either party, if they wished to exercise it through the blue
slip, a veto over any home state judicial nomination to which they were opposed.34 In so doing,
the committee policy, some scholars have suggested, also had the effect of encouraging
presidential Administrations to consult beforehand with Senators of the opposition party, as well
as of the President’s party, to be sure that they would not oppose a person being considered for a
judicial nomination in the state in question.35
Since 1979, however, deference to home state Senators using the blue slip to block or delay
judicial nominees has not always been automatic. While some chairs of the Judiciary Committee,

31 See CRS Report RL32013, The History of the Blue Slip in the Senate Committee on the Judiciary, 1917-Present, by
Mitchel A. Sollenberger. See also Sarah A. Binder, “Where Do Institutions Come From? Exploring the Origins of the
Senate Blue Slip,” Studies in American Political Development, vol. 21, March 2007, pp. 1-15. (Hereafter cited as
Binder, “Where Do Institutions Come From?”)
32 CRS Report RL32013, The History of the Blue Slip in the Senate Committee on the Judiciary, 1917-Present, p. 4.
33 Ibid., p. 9.
34 By contrast, prior to 1956, during the first four decades of the Judiciary Committee’s blue slip policy, “no chair of
the Judiciary Committee allowed any negative blue slips to automatically veto a nomination.” Instead, judicial
nominations prompting negative blue slips from home state Senators received committee hearings and even, in some
cases, were reported by the committee to the full Senate. These episodes appeared to show that the committee’s policy,
during this time, “was that a negative blue slip was not intended to prevent committee action. Instead, a Senator’s
negative assessment of a nominee was meant to express to the committee his views on the nominee so that the
chairman would be better prepared to deal with the review of the nomination. The end result was that Judiciary
Committee chairmen did not traditionally view a negative blue slip as a sign to stop all action on judicial nominations.”
Ibid. p. 9.
35 See, for example, in Brannon P. Denning, “The Judicial Confirmation Process and the Blue Slip,” Judicature, vol.
85, March-April 2002, pp. 218-226, the following quote, at p. 222: “Just making known [to the administration] that the
senator is opposed and would, if the person is nominated, withhold the blue slip, sends a powerful signal that trouble is
in the offing. Then the administration must decide whether or not it wants to pick a fight. With judicial nominations,
then, the Senate has created an effective procedure for ensuring that its ‘advice’ is sought by the president prior to the
announcement of a nomination.... “ See also Binder, “Where Do Institutions Come From?”, who, at p. 1, observed that
the blue slip “allows home state senators to influence the course of nominations prospectively—encouraging presidents
to heed the preferences of home state senators in selecting new federal judges.”
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including those in the 109th, 110th, and 111th Congresses, have permitted committee action on a
judicial nomination only when both home state Senators returned positive slips,36 the committee
under other chairs, by contrast, has considered a judicial nomination with receipt of only one
positive blue slip,37 or on a few occasions, without a blue slip from either home state Senator.”38
While the blue slip policies of various recent chairs of the Judiciary Committee have varied,
nearly all policies, when articulated in writing, have communicated to the President the
importance of pre-nomination consultation with both home state Senators.39 Pre-nomination
consultation, a 2003 analysis concluded:
has been a key expectation of recent [Judiciary Committee] chairmen in the evaluation of
negative blue slips. The President is now expected to consult and involve each home state
Senator in the pre-nomination phase of the selection process. Without evidence of
consultation by the White House, various chairmen have appeared, as a matter of policy, to
accord greater value to a negative blue slip submitted by a non-consulted home state
Senator.40
Moreover, the role contemplated for Senators not of the President’s party, when engaging in pre-
nomination consultation with the President, has been expanded. Official blue slip policy
statements by recent chairs of the Judiciary Committee, for instance, have not only called for the
opportunity for opposition party Senators to express opinions about judgeship candidates being

36 For a description of the Judiciary Committee’s blue slip policy during the 109th and 110th Congresses, see Mitchel A.
Sollenberger, “The Blue Slip: A Theory of Unified and Divided Government, 1979-2009,” Congress & the Presidency,
vol. 37, May-August 2010, pp. 146-147 (policy during 109th Congress) and pp. 149-150 (policy during 110th Congress).
In evident reference to the committee’s blue slip policy during the 111th Congress, the chair of the committee, a
Democrat, stated during recent floor debate, “I have respected the minority. I have not brought up people who did not
have the support of their Republican home State Senators.” Sen. Patrick J. Leahy, “Nomination of Jane Branstetter
Stranch to be United States Circuit Judge for the Sixth Circuit,” remarks in the Senate, Congressional Record, daily
edition, vol.156, September 13, 2010, p. S7009.
37 CRS Report RL32013, The History of the Blue Slip in the Senate Committee on the Judiciary, 1917-Present, pp. 11-
14, 24.
38 Ibid., pp. 13, 22; Binder, “Where Do Institutions Come From?,” p. 15, note 53.
39 For example, Sen. Joseph R. Biden, Jr. (D-DE), Judiciary Committee chairman from 1987 to 1994, in a 1989 letter to
President George H. W. Bush emphasized the importance of the President’s Administration consulting “with both
home state Senators prior to submitting the nomination to the Senate.” If such “good faith consultation” did not take
place, he said, “the Judiciary Committee will treat the return of a negative blue slip by a home state Senator as
dispositive and the nominee will not be considered.” Sen. Joseph R. Biden Jr., letter to President George H. W. Bush,
The White House, June 6, 1989.
Sen. Orrin G. Hatch (R-UT), the committee’s chairman from 1995 to 2001 and again from 2003 to 2004, wrote in 1997
to the White House counsel to President William J. Clinton that “the Senate expects genuine, good faith consultation by
the Administration with home state Senators before a judicial nomination is made, and the Administration’s failure to
consult in genuine good faith with both home state Senators itself is grounds for a Senator’s return of a negative blue
slip. Where the Administration has failed to provide good faith pre-nomination consultation, a negative blue slip is
treated as dispositive, and precludes Committee consideration of a judicial nominee.” Sen. Orrin G. Hatch, letter to
Charles F.C. Ruff, counsel to the President, The White House, April 16, 1997.
Sen. Patrick J. Leahy (D-VT), the committee’s chairman from 2001-2002, was reported as having said, in an June 6,
2001, interview, that “unless he is satisfied that both senators from the home state of a nominee have been consulted by
the Bush administration, a nomination will not move.” Elizabeth A. Palmer, “Senate GOP Backs Down from Dispute
over Handling of Nominees,” CQ Weekly, vol. 59, June 9, 2001, p. 1360.
40 CRS Report RL32013, The History of the Blue Slip in the Senate Committee on the Judiciary, 1917-Present, p. 25.
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considered by the Administration, but also the opportunity to propose their own candidates to the
Administration.41
In sum, the Judiciary Committee’s blue slip policy in recent decades, as applied in somewhat
varying ways by different chairs, appears always intended to promote some measure of an
advisory role for home state Senators of both parties in the judicial nominee selection process.
Moreover, the contemplated advisory role has included the opportunity, if Senators wish, to make
recommendations to the President about whom to nominate. As a caveat, however, it should be
kept in mind that the blue slip policy is set by the committee’s chair and is not a part of the
committee’s written rules. As a result, the policy’s key elements, including the degree of
importance placed on Administration consultation with home state Senators, is always subject to
change, in keeping with the prerogatives of the committee chair.
Senators’ Party Affiliations and Their
Recommending Role

The political party affiliations of a state’s Senators usually, if not always, are an important
determinant of what role they play in the selection of federal judicial nominees in their state. As a
general rule, a Senator who belongs to the President’s party has the primary role in
recommending candidates for federal district court judgeships in the home state, and an
influential, if not the primary, role in recommending candidates for federal circuit court
judgeships associated with the home state. These, as a general rule, are in contrast to the much
lesser roles in recommending district and circuit court candidates played by a Senator who is of
the opposite party. If both of a state’s Senators are of the President’s party, they usually, although
not always, share the responsibility of recommending judicial candidates to the President. If
neither Senator is of the President’s party, some other official or officials in their state typically
assume the primary role of recommending judicial candidates. Senators not of the President’s
party, however, sometimes are in a position to establish for themselves a more influential role in
recommending judicial candidates than as just described. This particularly might prove to be the
case if the Senators are perceived as having the ability and likely inclination to block nominations
(either through use of the Judiciary Committee’s blue slip procedure or through Senate floor
tactics such as the filibuster), unless afforded an enhanced role in judicial nominee selection.
When One Senator Is of the President’s Party
As already discussed,42 Senators of the President’s party, by well-established custom, are the key
persons who provide the President’s Administration with recommendations for U.S. district court

41 For instance, in his 1997 letter to the White House counsel to President William Clinton, Sen. Orrin G. Hatch (R-
UT), chairman of the Judiciary Committee, listed five circumstances indicating “an absence of good faith consultation”
by the White House with home state Senators. One of the five circumstances, he said, was the “failure to give serious
consideration to individuals proposed by home state Senators as possible nominees.” Sen. Orrin G. Hatch, letter to
Charles F.C. Ruff, counsel to the President, April 16, 1997. For a listing of all five “circumstances” in Sen. Hatch’s
letter, see CRS Report RL32013, The History of the Blue Slip in the Senate Committee on the Judiciary, 1917-Present,
pp. 15-16.
42 See earlier section in this report under the heading “Senatorial Courtesy.”
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judgeships in their state. One authority on the judicial appointments process, writing in 1987,
noted:
A senator of the president’s party expects to be able to influence heavily the selection of a
federal district judgeship in the senator’s state; indeed, most such senators insist on being
able to pick these judges, and they expect judgeships on the federal courts of appeals going
to persons from their states to be “cleared” by them.43
When only one of a state’s Senators is of the President’s party, he or she alone, by custom, is
entitled to select all candidates for district judgeships in that state. If the Administration has
concerns about a Senator’s recommendation, it is expected to resolve those concerns with the
Senator. If the Administration continues to have a problem with a candidate, finding him or her
unacceptable as a nominee, the Senator, and not any other official outside the Administration, is
called on to provide a different recommendation. If the Administration prefers its own candidate,
it in turn must persuade the Senator to agree to its choice. For the Administration to do otherwise,
and push forward with a nominee objected to by the Senator, is to risk rejection by the Senate,
given the custom of senatorial courtesy, discussed earlier. The latter scenario is very rare,
however, for “[n]o administration deliberately seeks to alienate senators of their own party or to
run the risk of a senator’s sabotaging a nomination once it has been sent to the Senate.”44
When only one of a state’s Senators is of the President’s party, that Senator will have almost
complete discretion as to whether or how to consult with the state’s other Senator about judicial
nominations. There is no requirement that the former consult with the latter, and some Senators in
such a situation may decline to consult with their home state colleague in any way. On the other
hand, many Senators in such situations have consulted with their home state colleague, in various
ways, and some have gone so far as to involve them in a joint or coordinated process of
recommending judicial candidates to the President.45 The following list notes some options

43 Sheldon Goldman, “Judicial Selection,” in Robert J. Janosik, ed., Encyclopedia of the American Judicial System:
Studies of the Principal Institutions and Processes of Law
, 3 vols. (New York, Scribner, 1987), vol. 2, p. 589.
(Hereafter cited as Goldman, in Encyclopedia of American Judicial System.)
44 Ibid., p. 590.
45 For example, in 10 states during the Carter presidency (1977-1980), a scholar has noted, Senators “who were not in
the president’s party played a significant role in selection by establishing or co-cosponsoring nominating
commissions.” Neff, United States District Judge Nominating Commissions, p. 20. In a long-standing arrangement in
New York, when that state had both a Republican and a Democratic Senator, the Senator of the President’s party
customarily proposed candidates for three out of every four vacancies in the federal district courts located in New
York, with the other Senator proposing a candidate to fill the fourth judicial vacancy. For a fuller description of the
arrangement in New York, see Federal Bar Council Committee on Second Circuit Courts, “Judicial Vacancies: The
Processing of Judicial Candidates: Why It Takes So Long and How It Could Be Shortened,” Federal Rules Decisions,
v. 128, January 1990, p. 145. More recently at the start of the presidency of George W. Bush, in 2001, Nevada’s two
Senators (one Republican and the other Democrat) announced an agreement in which the latter Senator would
recommend candidates for one out of every four district court vacancies occurring in the state (an arrangement
described as based on the bipartisan arrangement, just discussed, that was in effect for many years in New York).
Matthew Tully and Emily Pierce, “Senators Work Out Novel Agreements on Judiciary Posts,” CQ Daily Monitor, June
13, 2001, p. 5. The same story reported that a “similar agreement” had been reached by the Senators from Illinois (one
a Republican, the other a Democrat) for making judicial nominee recommendations. Shortly after the start of the
presidency of Barack Obama, Florida’s Democratic Senator announced a revamped membership of the longstanding
Florida Judicial Nominating Commission (JNC); he stated that he had named a new commission head, in cooperation
with the state’s other U.S. Senator, a Republican, and that the two had agreed upon a new set of rules under which the
JNC would recommend judicial candidates for the Senators to interview for possible forwarding to the White House.
Sen. Bill Nelson, “Former Anti-Public Corruption Prosecutor to Head Statewide Panel Screening Judicial Candidates,”
news release, February 27, 2009, accessed at http://billnelson.senate.gov/news/details.cfm?id=308825&.
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available to a Senator of the President’s party when considering whether or how to consult or
cooperate with a home state colleague of the opposite party about judicial nominee
recommendations. The options are not exhaustive but, rather, identify different degrees of
consultation or cooperation about judicial candidates that can exist between home state Senators
of opposite political parties:
• The Senator of the President’s party makes recommendations to the
Administration without consulting the other home state Senator at any stage—
apprising the latter neither of persons under consideration early in the process nor
of persons actually recommended later in the process.
• The Senator as a courtesy informs the other home state Senator of the person
whom the former has recommended for a judicial nomination, without, however,
soliciting the latter’s views about the candidate or about other possible
candidates.
• The Senator informs the other home state Senator of persons under consideration
as potential judicial nominees, welcoming input from the latter about these
candidates as well as suggestions as to other possible candidates.
• The Senator agrees to allow the other home state Senator to select a minority of
the members of an advisory panel which evaluates and screens judicial
candidates before the first Senator decides whom to recommend.
• The Senator shares the recommending function with the other home state
Senator, allowing the latter to select candidates for a minority of the judgeships
which become vacant in the state (for example, for every fourth judgeship).
• The two Senators work as co-equals in the selection process—for example, by
using a completely bipartisan panel or commission to identify and screen
applicants, and with all candidate recommendations to the President made by the
Senators jointly.
These options, as mentioned, are almost entirely at the discretion of the Senator of the President’s
party, with his or her views about the judicial appointment process largely determining the extent
to which there will be consultation or cooperation with the other home state Senator. Such views,
in turn, may be influenced by the immediate political environment, including (1) the nature of
working relations between the two Senators in general (e.g., strained or cordial); (2) the past
practices of Senators in the state regarding judicial patronage (i.e., whether Senators in the state
previously worked closely together on judicial appointments); (3) the degree of Administration
support for consultation or cooperation between Senators of opposite political parties on home
state appointments;46 and (4) the extent to which the other Senator is perceived as able or inclined
to block home state nominations either in committee or in the full Senate.47

46 An administration might generally regard bipartisan cooperation between home state Senators on judicial
nominations as politically beneficial, insofar as it paves the way for bipartisan support for these nominations in the
Senate. Sometimes, however, an administration might regard cooperation as going too far—for instance, when the
Senator of the other party is allowed to assume the role of recommending candidates for some of the state’s judicial
nominations and the Senator then makes recommendations of which the Administration disapproves. In such instances,
an administration might feel it does not have to accept these recommendations or reach accommodations with the
Senator on a mutually acceptable choice, as an administration typically would in its interactions with the home state
Senator of the President’s party.
47 The ability of opposition party Senators to block lower court nominations from their state will be particularly
(continued...)
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When Both Senators Are of the President’s Party
If both of a state’s Senators are of the President’s party, they may share the role of recommending
judicial candidates to the President or, alternately, one of them may take the lead role. Senatorial
custom, particularly in recent decades, provides ample support for both Senators having an active
role in recommending judicial candidates in their states, if each wishes to participate in the
process.48
In many states in which both home state Senators are of the President’s party, both may be
engaged in evaluating and selecting judicial candidates. One option within this arrangement is for
both Senators to review and evaluate judicial candidates for every judicial vacancy that arises in
their state. At their discretion, the Senators may use an informal process to select candidates, for
example, relying on their personal knowledge of likely candidates or on input from close advisers
or friends in the legal community. Alternately, they may use a more formal process, for example,
relying on advisory panels to review applications, interview candidates and make
recommendations for the Senators to choose from. At the end of the screening process, the
Senators may agree on one or more candidates to recommend to the President for the judgeship,
or, if they cannot reach agreement, they might combine their individual recommendations into
one list to submit to the Administration.
Another option, by contrast, is for both Senators to be active in the judicial candidate selection
process, but to take turns—alternating in the role every time there is a court vacancy in their state.
Alternating, from the workload standpoint (in time required to screen judicial candidates), might
appear more attractive for Senators in states having a relatively large number of district
judgeships, where vacancies occur periodically. It, however, might appear less attractive for
Senators in states having only a handful of district judgeships, where vacancies occur
infrequently. Senators agreeing to alternate may decide, individually, to select candidates through
either an informal or a formal process (as described in the previous paragraph). In cases where
both Senators wish to rely on advisory panels to screen candidates, they have the choice of using
joint panels (which serve on behalf of both Senators—with each Senator typically choosing some
of the panel’s members) or of using their own separate panels. At the end of such an alternating
screening process, only the Senator involved submits a recommendation (or a list of
recommendations) to the President for the vacant judgeship in question.
Sometimes, however, in a state having two Senators of the President’s party, one Senator may opt
out of an active role in recommending judicial candidates, leaving the task primarily to his or her
home state colleague. A Senator might do so for a variety of reasons—lack of interest in judicial
appointments, insufficient time available for the role (given other Senate responsibilities), or out

(...continued)
enhanced if their party is in the Senate majority and if the chair of the Judiciary Committee or the Senate majority
leader is prepared to support the Senators in opposition to a home state nomination.
48 Indicative of this custom was a survey in early 1993, during the first months of Democrat William J. Clinton’s
presidency, of staff in Senate offices on methods used to select candidates for district judgeships. At that time,18 states
were represented by two Democratic Senators. Of these 18 states, 11 were identified in the survey as having both of
their Senators jointly involved in the selection of judicial candidates, while in five other states one of the Senators was
identified as the “chief sponsor” or as “taking the lead” in the selection process. (In the two other states, the Senators
had yet to decide on what selection process they would use.) Citizen’s Handbook Supplement: A State-by-State Guide
to Federal Judicial Selection
(Washington: Alliance for Justice, April 1993), 15 p. (Hereafter cited as Citizen’s
Handbook Supplement.
) (Copy of pamphlet available from author.)
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of deference to the state’s other Senator, due to the latter’s seniority, interests, committee
assignments, or greater experience in evaluating judicial candidates. In such cases, the more
involved Senator, proceeding alone as the lead Senator, may review the backgrounds and
qualifications of judicial applicants with informal support or input from others or, in a more
formal arrangement, receive evaluations of the applicants, or recommendations, from an advisory
panel established specifically on behalf of the Senator to screen judicial candidates.
At one or more points during the screening process, the lead Senator can be expected to consult
with the other Senator—especially at the point at which the latter can be advised of the candidate
or candidates whom the lead Senator believes should be recommended or who have received
advisory panel recommendations. The lead Senator, before finalizing his or her choice of a
candidate, will want the other Senator’s approval—or, failing that, at the very least the other
Senator’s willingness not to object to the candidate’s nomination later.49 Once a candidate is
selected, the actual recommendation may be made singly, by the lead Senator, or jointly, by both
Senators. Likewise, a public statement noting a candidate’s nomination by the President may be
made solely by the lead Senator or jointly by both Senators.
If both of the state’s Senators are of the President’s party, the prospects for a district court
candidate’s nomination in that state are bolstered if both Senators have recommended that
candidate to the President. A scholar on the judicial appointment process has noted, “If there are
two senators of the president’s party from a particular state, [Justice] department arithmetic has it
that the effect of two senators” wanting a particular nominee for a district judgeship in their state
“is more than one plus one. The sum is more like infinity, for it would only be with great
trepidation” that the Administration “would attempt to counter the will of both senators.”50
When Neither Senator Is of the President’s Party
If neither Senator in a state is of the President’s party, each usually, by custom, plays at most only
a secondary role in recommending judicial candidates for the President’s consideration, with the
primary role assumed by other officials from the state who are of the President’s party. On
occasion, however, exceptions to this rule do occur, with a President sometimes acquiescing to
active senatorial participation in judicial candidate selection in states having two opposition party
Senators. On other occasions, an agreed-upon arrangement in a state might be that while officials
of the President’s party would be the ones recommending judicial candidates, the state’s
opposition party Senators would exercise a veto power over any recommendations they found
objectionable.
The Customary Model: Officials in the State Who Are of the President’s Party
Play the Primary Recommending Role

By custom, when neither of a state’s Senators is of the President’s party, the primary role in
recommending candidates for district court judgeships is assumed by officials in the state who are

49 This endorsement, or commitment not to oppose, is essential to assure that the nomination will not later be blocked
by the second Senator either in the Senate Judiciary Committee (through non-return of a blue slip or return of a
negative blue slip) or, in the event the nomination were reported by the committee, on the Senate floor (by invoking
senatorial courtesy).
50 Chase, Federal Judges, p. 37.
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of the President’s party. Historically, in the absence of a Senator of the President’s party, the state
official or officials who most frequently have exercised the judicial “patronage” function have
been the most senior Member, or one of the most senior Members, of the party’s House of
Representatives delegation, the House party delegation as a whole, the governor, or state party
officials. In any given state, one of these officials may exercise the recommending function
exclusively, or share it with one or more of the others.
A survey published in April 1993 illustrates the customary options used to select candidates for
district judgeships in states not having Senators of the President’s party. The survey, by the
interest group Alliance for Justice, was published shortly after the start of the presidency of
William J. Clinton in January 1993.51 It was based primarily on interviews with staff members in
the offices of Democratic Senators and House Members, with additional information obtained
through interviews of Democratic Party officials. At the time of the survey, there were 11 states in
which neither Senator was a Democrat. In one of the 11 states, a judicial candidate selection
process was not yet in place, and no judicial vacancies were pending there. In the other 10 states,
according to the survey, judicial selection procedures were set or being put in place. The
numerical breakdown of these 10 states, according to the type of Democratic official acting as the
“chief sponsor” of judicial candidates, was as follows:
• 5 states—a House of Representatives Member;
• 2 states—the governor;
• 2 states—a House of Representatives Member and the governor;
• 1 state—the U.S. Department of Agriculture Secretary.52
In June 1993, a few months after the survey’s publication, another state, Texas, joined the ranks
of states in which neither Senator was of the President’s party. (This occurred when a Republican
was elected to a Senate seat in a special election, giving Texas two Republican Senators.) At that
point, it was reported, “the traditional authority to make recommendations to the President fell to
... Texas’s senior congressional Democrat”53 (the state’s senior Democratic House Member).54
Likewise, at the start of presidency of George W. Bush, a Republican, in January 2001, the new
Administration looked to other than senatorial sources for advice on judicial candidates in states
having two opposition party Senators. The Legal Times reported that in “the 18 states where both
senators are Democrats, Bush will be getting advice on potential nominees from a high-ranking
Republican House member or the state’s Republican governor.”55 Without listing the selection

51 Citizen’s Handbook Supplement, 15 p.
52 Ibid., pp. 3-15. The Secretary of Agriculture, identified by the survey as the chief sponsor for federal judicial
candidates in Mississippi, was Mike Espy, who, prior to his appointment as Secretary of Agriculture, served as a
Democratic Member of the U.S. House of Representatives for six years.
53 R.G. Ratcliffe, “Lawmaker’s Tip a Curve to Clinton; Brooks Recommends Other Judge for Post,” The Houston
Chronicle,
November 18, 1993, p. A29.
54 In January 1995, however, under a new dean, the state’s Democratic House Members shared among themselves the
recommending role—creating four panels, for each of the state’s four judicial districts, to recommend district court
candidates to the President. See Steve McGonigle, “Gonzalez Parcels Out Responsibility for Making Federal Judicial
Selections; Representatives to Recommend Candidates for their Regions,” The Dallas Morning News, December 18,
1994, p. 10A; William E. Clayton Jr., “Jurist Nominees to be Picked in New Process; Texas Federal Judgeships Are
First Test, The Houston Chronicle, January 16, 1995, p. A5.
55 Jonathan Ringel, “GOP Senators Ready to Enter the Judges Game,” Legal Times, vol. 24, January 22, 2001, p. 6.
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Role of Home State Senators in the Selection of Lower Federal Court Judges

methods for each of the 18 states, the article noted, as examples, that in two of the states a senior
Republican House Member would be working together with the Republican governor on judicial
recommendations, while in a third state a Republican House Member expected to be the
President’s “point man on judicial nominations.”56
By custom, the role of a state’s Senators in judicial candidate selection, when neither is of the
President’s party, is secondary to the role of those officials discussed above, who actually choose
candidates to recommend to the President. Customarily, in these circumstances, the state’s
Senators, if they are consulted by state officials of the President’s party, are consulted for their
reactions to candidates under consideration, but not for their own preferences. Where
consultations of this sort are done in good faith, negative as well as positive feedback from the
Senators would be welcomed, but typically they would not be called upon to make their own
candidate recommendations.57 As a scholarly study has noted, until recent decades,
senators who were not of the president’s party in any given administration played little or no
role in district judge selection, except as permitted in informal agreements between senators
and any given administration or by the Senate Judiciary Committee through the blue slip.
Moreover, that role described above was generally a negative role: a senator who was not of
the President’s party from the state in which a judicial nominee would serve could delay or
prevent confirmation of a nominee by refusing to return the blue slip, but the senator could
not compel the President to choose his or her candidates.58
The secondary role of Senators in judicial candidate selection in states where both are of the
opposition party was stated as formal Administration policy early in Ronald Reagan’s presidency.
In a March 1981 memorandum on judicial selection procedures, the Department of Justice
discussed, among other things, the procedure that would apply in states with no Republican
Senators. In these cases, the memorandum said,
the Attorney General will solicit suggestions and recommendations from the Republican
members of the congressional delegation, who will act in such instances as a group, in lieu of
Senators from their respective states. It is presumed that congressional members in such
cases would consult with Democratic Senators from their respective states.59
Exceptions to the Customary Model, Where Senators Play a Primary
Recommending Role

Sometimes, however, in states having two opposition party Senators, Presidents agree to a more
active form of senatorial involvement in judicial selection. In these cases, a more active role for a
state’s Senators might consist of actually serving as a primary source for judicial candidate
recommendations or selecting at least some of the members of an advisory panel or commission,

56 Ibid., p. 8.
57 Of course, if the Senators objected to a candidate under consideration, their views might often be expected to carry
weight with the Administration, in light of the formidable opposition they could mount against home state nominations
later in the Senate Judiciary Committee or on the Senate floor.
58 Neff, United States District Judge Nominating Commissions, p. 20.
59 “Department of Justice; Memorandum on Judicial Selection Procedures, 3/2/1981,” United States Law Week, vol. 49,
no. 37, 1981, p. 2604. For another source for full text of the memorandum, see “The Attorney General’s Memorandum
on Judicial Selection Procedures,” Judicature, vol. 64, April 1981, p. 428.
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Role of Home State Senators in the Selection of Lower Federal Court Judges

if one is established in cooperation with officials of the President’s party to make judicial
candidate recommendations.
In recent decades, various Presidents, in a limited number of situations, have allowed a state’s
Senators, when both were of the opposition party, an involvement in judicial candidate selection
entailing more than simply being consulted during the selection process. For example, in states
having two opposition party Senators, President John F. Kennedy, a scholar has written, was
sometimes inclined to select persons of the opposition party for judicial appointments. In these
situations,
President Kennedy used Republican Minority Leader Everett Dirksen as a liaison between
the White House and Republican senators. Dirksen was asked to solicit suggestions from the
senators in those states which had two Republican senators, though suggestions of names
made directly by the senators were accorded equal treatment.60
During the presidency of Gerald R. Ford, a Republican, Florida’s two Democratic Senators
increased their involvement in the selection of federal district judges in that state—through
establishment of a commission to recruit and evaluate judicial candidates. The nine-member
Federal Judicial Nominating Commission, which began operations in 1975, was created and
chartered by the state of Florida, at the impetus of the two Senators, in conjunction with the state
bar association. Under the charter, each of the three sponsors—the two Senators and the bar
association—chose one commissioner from each of Florida’s three federal judicial districts.61
After evaluating applicants, the commission was to recommend not fewer than five candidates per
vacancy to the Senators, who would then recommend one candidate for each vacancy.62 In its first
year of operation, the commission recommended candidates for nomination for two district court
vacancies and one circuit court vacancy. President Ford and the Florida Senators cooperated to
fill two of three vacancies with nominees selected from the commission’s candidates.63 In 1976,
the second year of the commission’s operation, and President Ford’s last full year in office, the
President continued to accept and select his nominees from the commission’s candidates.64 The
Florida commission marked “the first time in more than 135 years” that Senators “who were not
in the President’s party played a substantial formal role at the stage before the official
nominations of persons for district court judgeships.”65
Other Senators of the opposition party also, on occasion, have successfully bargained for power
over judicial patronage. During the presidency of Richard M. Nixon, a Republican, California’s
two Democratic Senators, it was reported, reached an agreement with the Administration that
every third federal judgeship in that state would go to a judicial candidate suggested by the

60 Joel B. Grossman, Lawyers and Judges: The ABA and the Politics of Judicial Selection (New York: John Wiley and
Sons, Inc., 1965), p. 30.
61 The commission charter excluded officers of the state’s political parties from membership as commissioners. This
provision, a scholar observed, “could be read as attempting to oust Florida’s Republican officials from participation in
selection during the Republican administration in office at that time.” Neff, United States District Judge Nominating
Commissions
, p. 21
62 “It is significant,” Neff wrote, “that the commission reported to its sponsoring senators rather than directly to the
President.” Ibid.
63 Ibid., p. 23. Neff did not identify which of the three vacancies was not filled by a nominee recommended by the
commission or provide any details explaining the commission’s non-involvement in filling that vacancy.
64 Ibid., pp. 23-24.
65 Ibid., p. 24.
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Role of Home State Senators in the Selection of Lower Federal Court Judges

Senators.66 In a number of states, the Administration of President William J. Clinton, a Democrat,
spent “considerable time,” according to one legal scholar, “treating Republican senators’ demands
that they be involved” in judicial candidate selection.67 In a few of these states, Republican
Senators “insisted that they be permitted to participate in choosing the candidates and even that
they [were] entitled to propose nominees.”68
More recently, the Republican Administration of President George W. Bush, in a few cases,
accepted a formal role for a state’s two Democratic Senators in judicial candidate selection. In at
least four instances, the Bush Administration reportedly reached understandings with opposition
party Senators to engage in a judicial selection process largely, if not entirely, reliant on candidate
recommendations made by judicial nominating commissions from the Senators’ states. These
understandings were reached when the states involved—California, Florida, Washington, and
Wisconsin—were represented by two Democratic Senators.69
In each of the aforementioned four states, the role of opposition party Senators in the selection
process entailed more than simply being consulted about possible nominees. In each state, a
judicial nominating commission was established prior to, or during, the Bush presidency, to
evaluate the qualifications of judicial candidates and to make nominee recommendations—with
the Senators, in each case, responsible for selecting at least some of the commission’s members.
After a commission made its evaluations, its recommendations were forwarded to the Senators for
their review. (A commission’s recommendations, in some of the states, also were reviewed by
House Members of the President’s party.) In turn, the Senators were afforded the opportunity to
indicate which candidates they preferred, before those names were forwarded to the President.70

66 Nina Totenberg, “Will Judges Be Chosen Rationally?” Judicature, vol. 60, August-September 1976, p. 95.
67 Carl Tobias, “Federal Judicial Selection in a Time of Divided Government,” Emory Law Journal, vol. 47, Spring
1998, p. 543.
68 Ibid. Providing a similar perspective, a former assistant attorney general, in a 2002 symposium, noted that, in the
Clinton Administration, “we did try to make arrangements and accommodations with Republican senators. It became a
matter of necessity when we reached the point in a number of quarters of the country where we were looking at states
and circuits with lots of Republican senators, some of whom absolutely refused to consider any person put forward by
President Clinton at the district or circuit court level.” Eleanor D. Acheson, former assistant attorney general, Office of
Policy Development, quoted in “Selecting Federal Judges: The Role and Responsibilities of the Executive Branch,”
Judicature, vol. 86, July-August 2002, p. 17.
69 See Sen. Dianne Feinstein, “Senators Boxer and Feinstein Announce Bipartisan Judicial Nomination Panel,” news
release, May 22, 2001, accessed at http://feinstein.senate.gov/releases01/judicial_nomination_panel.html; Sen. Bob
Graham, “White House Commits to Honor Florida Nominating System; Graham Says Judiciary Needs to Maintain
Independence,” news release, March 12, 2003 (copy available from author); Katherine Pfleger, “Senators, White House
Might Be Close to Resolution on Federal Judicial Nominee,” Associated Press, March 18, 2002, accessed at
http://www.lexisnexis.com; “Murray, Cantwell to Form Panel,” The Seattle Times, March 19, 2002, p. B3; Sen. Herb
Kohl, “Kohl, Feingold Announce Activation of Wisconsin Federal Nominating Commission,” news release, June 25,
2003 (copy available from author); and Eric J. Frommer, “White House Nominates Wisconsin State Judge for Federal
Judgeship,” Associated Press, November 14, 2003, accessed at http://www.lexisnexis.com.
As of January 2005, it should be noted, Florida ceased to be represented by two opposition party Senators, following
that state’s election of a Republican to the Senate in November 2004. Thereafter, as a result, the primary role for
selecting members of Florida’s judicial nominating commission, as well as for reviewing and forwarding the
commission’s candidate recommendations to the White House, was assumed by a Senator of the President’s party.
70 Also, in at least one of the states, Wisconsin, the Senators retained the prerogative to block from being forwarded to
the President any commission recommendation of which they might disapprove. See David Callender, “Sykes Is 7th
Circuit Finalist; Bush to Make Pick for Appeals Court,” The Capital Times & Washington State Journal, August 5,
2003, p. 3A.
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Role of Home State Senators in the Selection of Lower Federal Court Judges

In another kind of arrangement for a state, officials of the President’s party would be the ones
recommending judicial candidates, but with the state’s opposition party Senators exercising a veto
power over any recommendations they found objectionable. Such an arrangement, for instance,
according to Illinois’s two Democratic Senators, was in place in their state during the final two
years of the last Bush Administration.71
Lesser Role for Senators When Recommending
Circuit Court Candidates

Senators in general exert less influence over the selection of circuit court nominees than over
selection of district court nominees. Whereas home state Senators of the President’s party often, if
not always, dictate whom the President nominates to district judgeships, their recommendations
for circuit court nominees, by contrast, typically compete with names suggested to the
Administration by other sources or generated by the Administration on its own.
Lesser Role Well Established by Custom
The lesser role for Senators, and the more independent role of the President, in the selection of
circuit court nominees is well established by custom. In a landmark 1953 study of the
appointment process, the President was said to have “a much freer hand in the selection of judges
of the circuit courts of appeal, whose districts cover several states, than of district judges, who
serve within individual states.”72 In 1971, during the presidency of Richard M. Nixon, a scholar
wrote, “When it comes to making appointments to circuit courts, the balance of power shifts
markedly [away from Senators] to favor decision-making by the President’s men.”73
In a 1977 analysis, a former U.S. Senator observed that, while many Senators had the “power” to
select district court nominees from their states, “no single senator automatically controls” who is
appointed to circuit judgeships.74 The Senator’s statement proved to be an understatement, for
during the years of Jimmy Carter’s presidency (1977-1980), his Administration relied almost
entirely upon a circuit judge nominating commission to identify candidates for circuit court
nominations. In so doing, the Administration largely excluded home state Senators of the
President’s party from the process of recommending persons for circuit judgeships. (The

71 In floor remarks during Senate consideration of a district court nomination in 2007, one of Illinois’s two Democratic
Senators noted that the nominee had been recommended by the leader of that state’s Republican House delegation,
“with the understanding he faced a veto” if either of the Senators objected. Sen. Richard J. Durbin, “Nomination of
Robert M. Dow, Jr., to be United States District Judge for the Northern District of Illinois,” remarks in the Senate,
Congressional Record, daily edition, vol. 153, November 13, 2007, p. S14238. The state’s other Senator stated that the
nomination had “continued the bipartisan approach to filling judgeships in the Federal district courts—an approach that
has served Illinois well.” Sen. Barack Obama, “Nomination of Robert M. Dow, Jr., to be United States District Judge
for the Northern District of Illinois,” remarks in the Senate, Congressional Record, daily edition, vol. 153, November
13, 2007, p. S14239.
72 Harris, Advice and Consent, p. 314.
73 Chase, Federal Judges, p. 43.
74 Tydings, “Merit Selection,” p. 113.
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Senators, however, were consulted for their views about the commission’s recommendations
before President Carter actually selected a nominee.)75
President Ronald Reagan disbanded the circuit judge nominating commission created by
President Carter, which restored for home state Senators a role in recommending circuit court
candidates.76 The role, however, was not a dominant one, for during the Reagan presidency, one
scholar has written, the process for selecting circuit nominees was marked by “tight
administration control over the screening process.”77
At the start of the Clinton presidency, in 1993, a somewhat similar picture was portrayed of
Senators playing a subordinate role to the Administration when identifying candidates for circuit
court judgeships. In comparison with their role in recommending district court nominees, a report
found, Senators were said to “have less influence over the President’s selection of nominees to the
12 circuit courts”—with Senators free to “suggest [circuit] candidates to the White House,” but
with the President “traditionally not bound by such suggestions.”78 At the end of the Clinton
presidency, an outgoing Department of Justice official noted that, while Senators usually “pretty
much decided” who was nominated for district court judgeships, the appellate court selections
were “primarily controlled, decided by the White House and the Justice Department, mostly the
White House.”79
Subsequently, in the presidencies of George W. Bush and Barack Obama, the role of Senators in
recommending circuit court nominees continued, as a general rule, to be less significant than their
role in recommending district court nominees; the names of President Bush’s circuit nominees
tended “to be generated more by the Administration” than by Senators,80 with instances of
Senators having President Bush select their candidates for circuit judgeships being exceptions to
the rule.81 Similarly, President Obama, an Administration source said early in the Obama

75 See Goldman, Picking Federal Judges, pp. 238-241. Goldman recounted that President Carter created the
commission through Executive Order 11972, and that the commission “consisted of thirteen eleven-member panels
appointed by the president (one for each judicial circuit, with the exception of the large Fifth and Ninth circuits which
were split geographically with eastern and western Fifth Circuit panels and northern and southern Ninth Circuit
panels).” Ibid., p. 238. See also W. Gary Fowler, “Judicial Selection under Reagan and Carter: A Comparison of Their
Initial Recommendation Procedures,” Judicature, vol. 67, December-January1984, pp. 267-268.
76 In disbanding the commission, President Reagan “ordered a return to the pre-Carter method of selection, with
senators and others recommending people to the Justice Department.” Sheldon Goldman, “Reagan’s Judicial
Appointments at Mid-Term: Shaping the Bench in His Own Image,” Judicature, vol. 66, March 1983, p. 342.
77 Goldman, Picking Federal Judges, p. 291.
78 Alliance for Justice Judicial Selection Project, Justice in the Making: A Citizen’s Handbook for Choosing Federal
Judges
(Washington: Alliance for Justice, 1993), p. 9. (Copy available from author.)
79 “Clinton Nominee Kent Markus: Judicial Delays Are Hurting the Country,” nationaljournal.com, June 20, 2001,
“Insider Interview,” accessed at http://nationaljournal.com/. Markus, who had served in the Department of Justice as a
counselor to Attorney General Janet Reno, was nominated by President Clinton to the U.S. Court of Appeals for the
Sixth Circuit on February 9, 2000. His nomination, however, received no action in the Senate and was returned to the
President on December 15, 2000, at the end of the 106th Congress.
80 Goldman et al., “W. Bush Remaking the Judiciary,” p. 285.
81 For mentions of a few instances in 2001 and 2002, when Republican Senators persuaded President Bush to nominate
someone recommended by them to circuit court judgeships, see Mitchel A. Sollenberger, “The Law: The President
‘Shall Nominate’: Exclusive or Shared Constitutional Power?,” Presidential Studies Quarterly, vol. 36, December
2006, p. 725.
Further, in 2008, the last year of President Bush’s Administration, President Bush in three instances—each time facing
opposition from home state Senators to specific circuit court nominations—withdrew the nominations and selected new
nominees recommended by the Senators. In one case, President Bush selected a new nominee from Michigan (to a
(continued...)
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presidency, “retains the prerogative” to select circuit court nominees on his own, independently of
Senator recommendations.82 By early April 2010, according to another Administration source, of
18 persons nominated by that point to circuit judgeships, President Obama had selected 12 who
were not candidates recommended by home state Senators.83
Eleven of the 13 U.S. circuit courts of appeals, it will be recalled, are geographically based courts
encompassing three or more states.84 In each of these circuit courts, many of the seats on the
bench have traditionally been linked to a particular state. “And historically, overwhelmingly,” one
scholar has observed, “the majority of replacement appointments for appeals court vacancies
have, indeed, gone to judges from the state in which the vacancy arose.”85 Hence, each time one
of these judgeships is vacated, Senators of the state involved usually can be expected to cite the
tradition of the “state seat” and seek, through their own candidate recommendations, to preserve
the judgeship for a nominee from their state.86 For their part, Presidents in recent decades usually,

(...continued)
Sixth Circuit judgeship) specifically recommended by that state’s two Democratic Senators. Ken Thomas, “Bush
Nominates Michigan Appellate Judge to 6th Circuit Slot,” Associated Press, April 15, 2008, accessed at
http://www.lexisnexis.com; David Ashenfelter, “White House Nominates 2 for Courts,” Detroit Free Press, April 16,
2008, p. 5, accessed at http://www.lexisnexis.com. In a second instance, opposition by Pennsylvania’s Democratic
Senator to a nominee to the Third Circuit reportedly prompted the President to select a new nominee from Pennsylvania
recommended jointly by that Senator and the state’s Republican Senator. Shannon P. Duffy, “Five Tapped for Federal
Bench Openings in Pennsylvania,” Law.Com, July 25, 2008, at http://www.law.com/jsp/law/LawArticleFriendly.jsp?
id=1202423251503; Kimberly Hefling, “Bush Nominates Five to Bench in Pa.,” Associated Press, July 24, 2008,
accessed at http://www.lexisnexis.com. In a third case, the President selected a new nominee from Virginia (to the
Fourth Circuit) recommended jointly by that state’s Senators, one a Republican and the other a Democrat; the
President’s earlier nominee had been criticized by both Senators and opposed by the latter. Manu Raju, “Judicial
Nominee Withdraws Amid Democratic Criticism,” TheHill.com, January 18, 2008, accessed at http://www.thehill.com;
“Bush Nominates Va. Judge to Fill Vacancy on 4th Circuit,” Law.Com, May 12, 2008, accessed at
http://www.law.com/jsp/law/LawArticleFriendly.jsp?id=1202421291011
In a fourth instance, the President made an initial selection of a circuit court nominee from among a list of persons
recommended jointly by the two Senators of the nominee’s state. The nominee, a Virginian nominated to a Fourth
Circuit judgeship, was reported to be one of several people that Virginia’s two Senators had jointly recommended to
President Bush “after conducting a [nominee] search of their own.” Deb Riechmann, “Bush Nominates Va. Justice to
Fill Vacancy on 4th Circuit,” Associated Press, March 14, 2008, accessed at http://www.lesixnexis.com.
82 Cassandra Butts, Office of the White House Counsel, Deputy Counsel to the President, telephone conversation with
the author, May 13, 2009. (Hereafter cited as Cassandra Butts, May 13, 2009, telephone conversation.)
83 Statement, commenting on draft CRS report language, of Jonathan Kravis, Office of the White House Counsel,
Associate Counsel to the President, provided by Rhonda Carter, Special Assistant to the White House Counsel, in
telephone conversation with the author, April 9, 2010. (Hereafter cited as Jonathan Kravis, April 9, 2010, statement.)
Author provided Carter with draft CRS report language concerning the role of the White House counsel’s office in
Obama Administration judicial candidate selection, inviting “feedback” from the office concerning the accuracy of the
language. Information cited here, or in other footnotes attributed to Kravis, was provided orally by Carter, in April 9,
2010, telephone conversation with author.
84 As discussed earlier, there is also a 12th geographically based federal court of appeals—the U.S. Court of Appeals for
the District of Columbia, geographically encompassing only the District of Columbia. Like the other 11 geographically
based circuit courts, it considers appeals of federal trial court cases decided within the circuit. A 13th federal court of
appeals, the U.S. Court of Appeals for the Federal Circuit, is headquartered in Washington, D.C., but unlike the other
12 circuit courts, has nationwide jurisdiction defined by subject matter.
85 Elliot E. Slotnick, “A Historical Perspective on Federal Judicial Selection,” Judicature, vol. 86, July-August 2002,
pp. 14-15.
86 The Senators might point to other considerations as well to justify filling the court vacancy with a representative of
their state. They might, for instance, advance the argument that the various states in the circuit should be proportionally
represented, with each having a certain minimal number of judges on the court, to insure adequate representation based
on each state’s population or the proportion of the court’s overall caseload originating from the state.
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but not always, have been inclined to make a circuit court appointment in keeping with the “state
seat” tradition, by selecting a nominee from the same state as the vacating judge.87
While Presidents usually observe the traditions of state seats on the circuit courts, in most cases
they are not required to do so. A President will be required to select a resident from a particular
state for a circuit court vacancy only when necessary to assure that the court is represented by at
least one appointee from that state.88 In all other circumstances, a President is free to appoint a
resident from any state within the circuit to a judgeship, in spite of any historical association a
particular state might have with the judgeship. This latitude of the President, to select a circuit
court nominee from candidates in more than one state, prevents Senators from being able to assert
an absolute claim for their state over any circuit judgeship (unless the judgeship’s vacancy would
leave the Senators’ state without representation on the circuit). When a President selects a
different state to be represented by a circuit judgeship, he in effect gives the senatorial
prerogatives associated with the judgeship to a different pair of Senators.
Senators’ Prerogatives in Circuit Nominee Selection
While Senators usually are not the dominant or decisive players in the process of selecting circuit
court nominees, they, nonetheless, do enjoy certain prerogatives in the process. Once a judgeship
in a circuit becomes vacant, Senators in states falling within the circuit are free to suggest names
to the President’s Administration regarding possible nominees. If the Administration has indicated
which state it wants the judgeship to represent—whether in keeping with a traditional state seat or
in a break with that tradition—the Senators of that state, if they are of the President’s party,
customarily are among those who recommend candidates for the judgeship. Senators of the
President’s party, one authority has written, “expect judgeships on the federal courts of appeals
going to persons from their states to be ‘cleared’ by them.”89 If the home state Senators are not of
the President’s party, they nonetheless have expectations—based on the Senate Judiciary
Committee’s long-standing blue slip policy—that they, too, will be consulted by the
Administration for their views about the prospective nominee.
Perhaps the most forceful input Senators can provide to a President’s Administration regarding
potential circuit court nominees is strong disapproval of a particular candidate from their state. If
the candidate is nominated in spite of their objections, the Senators, whether of the President’s
party or not, will have important Senate traditions in their favor if they decide to oppose the
nominee in the Senate. If they are of the President’s party, the Senators know (and the
Administration will know as well) that they have the tradition of senatorial courtesy to call upon.
As one scholar has noted, Senators can invoke senatorial courtesy effectively against a circuit
court nominations, provided they are of the President’s party and the nominee is a resident of

87 A CRS report updated on May 18, 2009, found that, from the presidency of Lyndon B. Johnson (1963-1969) to the
update of that report, 87% of appointments to the circuit courts had been of nominees who, at the time of their
appointment, were residents of the same state as the vacating judges’ state of residence at the time of appointment. CRS
Report RS22510, “State Representation” in Appointments to Federal Circuit Courts, by Susan Navarro Smelcer and R.
Sam Garrett
88 A federal statute that has been in effect since 1997 provides that every state must be represented by at least one judge
on the circuit court of appeals that geographically encompasses it. Specifically, it provides that “[i]n each circuit (other
than the Federal judicial circuit) there shall be at least one circuit judge in regular active service appointed from the
residents of each state in that circuit.” 28 U.S.C. §44(c); 111 Stat. 2493; P.L. 105-119, sec. 307.
89 Goldman, in Encyclopedia of American Judicial System, p. 589.
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their state.90 Hence, input from such Senators in forceful opposition to the candidate amounts to a
“negative recommendation” that the Administration should take very seriously, to avoid Senate
rejection of the candidate based on senatorial courtesy.
Senators who are not of the President’s party, by contrast, ordinarily would not be expected to
invoke senatorial courtesy to oppose a circuit court nominee from their state. They, however, can
take advantage of the Senate Judiciary Committee’s blue slip procedure to bolster their
opposition. In the event a candidate objectionable to them is nominated, the Senators, as
discussed above, may register their disapproval at the committee stage by declining to return a
blue slip or returning a negative blue slip to the Judiciary Committee. Such action by a home state
Senator, experience has shown, can jeopardize or doom a nomination, depending on the blue slip
policy of the committee’s chair.
During some chairmanships in recent decades, the policy of the Judiciary Committee has been to
allow, in some instances, committee consideration of a judicial nomination receiving a negative
blue slip, or no blue slip, from one or both of the nominee’s home state Senators.91 When such a
policy is in effect, a Senator’s negative blue slip, or failure to return a positive blue slip, does not
foreclose the possibility of the committee reporting the nomination to the Senate. It, however, at
the very least, draws the committee’s attention to the concerns of the home state Senator and to
the question of what degree of courtesy the members of the committee owe that Senator’s
concerns.
A nomination is much more in jeopardy when the Judiciary Committee policy in effect is not to
consider any nomination for which a home state Senator has not returned a positive blue slip.
When such is the committee’s policy, a home state Senator’s opposition to a judicial nomination,
through use of the blue slip, eliminates any chance of its being reported out of committee (in
effect killing the nomination), unless the Senator can be persuaded to drop his or her opposition.
Role of Senators If State Representation is Changed
Accordingly, when both of a state’s Senators are of the opposition party and they object to a
circuit court candidate from their state, their opposition might persuade the President not to
nominate the candidate. In turn, the Senators also might succeed in influencing the President to
nominate another individual from their state who is more acceptable to them. However, a
President, if dissuaded from nominating the candidate objected to by the Senators, may then
consider nominating an individual from another state in the circuit. In the event the President
chooses this option, the Administration will no longer have to engage in consultation with the
same Senators regarding the vacant judgeship, because they would no longer be the nomination’s
home state Senators. The home state Senators, with whom the Administration would be expected
to consult, would now be the Senators of the state of the new circuit court candidate.
For the President, however, a consideration against nominating someone from a state other than
that of the vacating judge will be the likelihood of controversy arising over the change in “state
representation.” It should be emphasized that in recent episodes in the Senate, involving a circuit

90 Chase, Federal Judges, pp. 43-44.
91 See CRS Report RL32013, The History of the Blue Slip in the Senate Committee on the Judiciary, 1917-Present, pp.
13, 22; Binder, “Where Do Institutions Come From?,” p. 15, note 53; and Seth Stern, “Saad Nomination Advances
Despite Senate ‘Blue Slips’,” Congressional Quarterly Weekly, vol. 62, June 18, 2004, p. 1479.
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court nominee whose state of residence was different from that of the vacating judge (or, in one
instance, different from that of the vacating judge at the time that judge was nominated), the
Senators representing the state of the vacating judge publicly objected on state representation
grounds, and the nominations failed to be confirmed.92
Selecting Judicial Candidates to Recommend
Learning of the Vacancy
For a home state Senator, the process of selecting a lower court judicial candidate typically begins
when the Senator’s office learns that a judgeship is, or soon will become, vacant. A judicial
vacancy is created when a judicial officeholder vacates the office (for example, by retirement,
resignation, elevation to a higher court, or death) or when legislation is enacted creating a new
judgeship. Depending on the circumstances, a current or future judicial vacancy will be brought
to the attention of a home state Senator by the outgoing judge, by the Administration, or on the
initiative of the Senator’s office. The typical practice of circuit and district judges is to give notice
of their planned retirements months in advance.93
Sometimes Senators learn of an upcoming judicial vacancy when a circuit or district judge from
their state, as a courtesy, alerts the Senators beforehand of the judge’s intention to retire. White
House or Department of Justice officials responsible for advising the President on judicial
appointments also can be expected to notify a Senator’s office of a judicial vacancy in the
Senator’s state—particularly if the Senator is of the President’s party—and to invite the Senator
to make recommendations of candidates to fill the judgeship. In this initial contact, or soon
thereafter, the Administration might also inform the Senator of its preferences concerning
candidates and the selection process: These preferences, for example, might include the number
of recommendations the Senator is expected to submit, the qualification standards that the
Senator’s candidates must meet, and the time frame in which the Senator is expected to submit

92 See “Background” section of CRS Report RS22510, “State Representation” in Appointments to Federal Circuit
Courts.
See also Spencer S. Hsu, “Senators Delay Vote on Va. Bench Nominee; Sarbanes, Mikulski Want a Md.
Appointee,” The Washington Post, July 10, 2004, p. B1; Sen. Dianne Feinstein, “Statement by Senator Dianne
Feinstein on the Nomination of Randy Smith to the 9th Circuit Court of Appeals,” news release, March 1, 2006,
accessed at http://feinstein.senate.gov/; “Most Say Boise Lawyer Who Is Up for Seat on 9th Circuit Has Little Chance
of Being Approved by Democratic Congress,” The Idaho Statesman, December 13, 2006, accessed at
http://www.idahostatesman.com. See also remarks by Sen. Patrick J. Leahy discussing the failure of a Virginian to be
confirmed to a circuit judgeship vacated by a Marylander and the success of an Idahoan in being confirmed to a circuit
judgeship vacated by an Idahoan (following controversy, however, over his earlier unsuccessful nomination to a circuit
judgeship which California’s Senators maintained was a “California seat”). Specifically, see Sen. Leahy’s remarks in
“Nomination of Sandra Segal Ikuta to be United States Circuit Judge for the Ninth Circuit,” Congressional Record,
daily edition, vol. 152, June 19, 2006, pp. S6053-S6054, and in “Norman Randy Smith to be United States Circuit
Judge for the Ninth Circuit,” Congressional Record, daily edition, vol. 153, February 15, 2007, p. S1986 (each
statement discussing both the Virginia-Maryland and Idaho-California controversies).
93 In March 2003, the federal judiciary’s governing body, the Judicial Conference of the United States, adopted a
committee recommendation, in which it “strongly urge[d] all judges to notify the President and the Administrative
Office of the United States Courts as far in advance as possible of a change in status, preferably 12 months before the
contemplated date of change in status.” Prior to that, retiring judges and those taking senior status had been encouraged
by the Conference to provide “substantial (i.e., six-month or one-year) advance notice of that action.” U.S. Judicial
Conference of the United States, Report of the Proceedings of the Judicial Conference of the United States, March 18,
2003, pp. 20-21, accessed at http://www.uscourts.gov/judconfindex.html.
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recommendations to the Administration. Also, in this preliminary outreach to the Senator, the
Administration might discuss paperwork requirements, such as the background questionnaires
that eventually will have to be filled out by any candidate that the Senator selects.
A Senator, however, does not have to wait to hear from outgoing judges or the Administration to
be informed of current or upcoming judicial vacancies. On its own initiative, a Senator’s office
can visit the federal judiciary’s website94 to identify district and circuit court judgeships which
currently are vacant or are scheduled to be vacated in the future. Within the judiciary’s website
are hypertext links to several vacancy lists, including one of current court vacancies, and another
of future court vacancies, both arranged by judicial circuit.95 In both lists, a Senator or the
Senator’s staff will readily find, under the heading of the judicial circuit in which the Senator’s
state is located, any circuit judgeships, as well as any district judgeships within the Senator’s
state, which are currently vacant or are scheduled to be vacated at a specified future date.
Of course, a Senator is free, if he or she chooses, to initiate a judicial candidate selection process,
or to compile a list of prospective judicial candidates, before learning that a judgeship is vacant or
scheduled to become vacant. Some Senators, particularly those representing a state having many
lower federal court judgeships—where vacancies might be expected to occur periodically—might
find it advantageous to be ready at any time, with names of judicial candidates to recommend.
Relationship with the Other Home State Senator
A key variable affecting the role of a Senator in selecting candidates for federal judgeships will be
the state’s other Senator. As discussed above, the extent to which the two Senators will share the
judicial selection role will depend, to a great extent, on their respective prerogatives and interests
in this area. One Senator might have more prerogatives to select judicial candidates than the
other, particularly if he or she is of the President’s party and the other is not. Further, if one
Senator has far more experience or expertise in selecting judicial candidates, the other Senator
might be inclined to defer to the more senior colleague in recommending persons to federal
judgeships. In addition, one Senator might be very interested in the judicial selection process,
while the other might, because of other priorities in the Senate, have less interest in this area. If
the prerogatives and interests of a state’s Senators in selecting judicial candidates are roughly
equal (e.g., they are both of the President’s party, have about the same amount of Senate seniority,
and are both interested in recommending judicial candidates to the President), sharing the
candidate selection role in some way seems almost inevitable.
First Option: Only One Senator Would Be Actively Involved in Selecting
Judicial Candidates

Within this approach, the other Senator, if he or she wished, could be afforded the opportunity to
clear or review any candidate selections, prior to their being recommended to the Administration,
as well as to join the selecting Senator in formally recommending candidates. This option might

94 The federal judiciary’s website is located at http://www.uscourts.gov/.
95 Within the website, a list of current district and circuit court vacancies can be accessed at http://www.uscourts.gov/
JudgesAndJudgeships/JudicialVacancies/CurrentJudicialVacancies.aspx. A list of future court vacancies (including, for
each judgeship in question, the date that the vacancy will take effect) can be accessed at http://www.uscourts.gov/
JudgesAndJudgeships/JudicialVacancies/FutureJudicialVacancies.aspx.
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be suitable not only in various situations where only one home state Senator is of the President’s
party, but also where both Senators are of the President’s party yet only one wishes to be actively
involved in the judicial selection process.
Second Option: The Two Senators Apportion between Themselves the
Selection of Candidates

This option could be taken by alternating the selection role, with the Senators taking turns
selecting a candidate each time a lower court vacancy arises in their state. A variation on this
approach would be for one Senator to select candidates for a majority of the judgeship vacancies
that occur and for the other Senator to select candidates for a minority (for example, for every
third or fourth judicial vacancy); this arrangement, as noted earlier, might be suitable in situations
where a Senator of the President’s party is willing to share the candidate recommending role with
a home state Senator of the other party. Also, Senators in states having more than one federal
judicial district could apportion between themselves the selection of judicial candidates according
to judicial district—for example, with candidates in one district selected by one Senator and
candidates in the second district selected by the other Senator.
Third Option: The Two Senators Work Together in Selecting Each Candidate
This arrangement could consist of active involvement of both Senator’s offices in each phase, or
in most phases, of the candidate selection process, for example, announcing vacancies and
inviting candidates to apply, reviewing candidate applications, interviewing applicants, and
selecting one or more candidates to recommend to the Administration. Alternately, if the Senators
were too busy to involve themselves with each phase of the candidate selection process, and did
not wish to assign their personal office staff to selection process tasks, they could delegate much
of the selection role to an outside screening committee, panel, or commission.96 In such a
delegated arrangement, the Senators might be most involved in the earliest and latest phases of
the selection process—in the beginning, when they would share in appointing members to the
screening panel, and at the end of the process, when they both would weigh the panel’s candidate
recommendations.
Criteria Used to Select Judicial Candidates
Senators might use a number of criteria to determine the fitness of persons from their state who
seek to be recommended for U.S. district or U.S. circuit court judgeships. Ordinarily, two sets of
criteria can be expected to be most important in governing the Senators’ choices—first, the
standards explicitly set by the Administration for judicial candidates, and second, the personal
criteria that the Senators themselves are inclined to use when deciding whether prospective
candidates merit recommendation to the President.
In recent decades, various Presidents have issued guidelines or made public statements regarding
the qualification standards that their judicial nominees must meet. Virtually every President has
emphasized the importance of a nominee meeting high professional standards and having the

96 As noted earlier, the current use by some Senators of outside judicial nominating commissions to evaluate and
recommend judicial candidates is discussed in more detail later in this report, under the heading “Procedures Used To
Identify and Evaluate Candidates.”
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ability to be impartial as a judge. At the same time, each President has underscored that judicial
nominees must conform with the basic values or ideals that the President believes are inherent in
the Constitution, as well as with the President’s views of what a judge’s fundamental role and
priorities should be in our nation’s constitutional system. Such perspectives on the Constitution
have tended to vary somewhat from one President to the next—with some Presidents, for
example, emphasizing the limited role of a judge in our constitutional system (i.e., whose role is
to “interpret” rather than to “make” the law) and others emphasizing the role of judges in
safeguarding constitutional and legal protections of citizens’ rights.
Further, some Presidents also have set various representational standards or goals for Senators to
meet when selecting judicial candidates, endorsing, for instance, the goal of increasing the
representation of women and persons of minority ethnicity in the lower federal courts.
Elaboration of what qualities an Administration looks for in judicial candidates also can come
from White House or Department of Justice officials who are involved in the judicial selection
process. A Senator seeking to select judicial candidates acceptable to the President will
necessarily want to take into account any qualification requirements expressed by the President or
other key Administration officials.
Senators also will have their own considerations or criteria to guide them in selecting judicial
candidates. In nearly all cases, a fundamental starting requirement for a Senator engaged in the
search for judicial candidates presumably will be that any person selected have the professional
qualifications, integrity, and judicial temperament needed to perform capably as a federal judge.
Forming a backdrop to each Senator’s search will be “the custom to appoint lawyers who have
distinguished themselves professionally—or at least not to appoint those obviously without
merit.”97 Accordingly, in many cases, a judicial candidate will, as part of the Senator’s selection
process, be evaluated or rated by a local or state bar association or some other kind of informal or
formal panel of lawyers called upon specifically to evaluate the candidate’s professional
qualifications. A Senator should be mindful that, once he or she has recommended a judicial
candidate to the President, the candidate’s qualifications will be closely investigated by
Administration personnel involved in advising the President on whether the candidate should be
nominated. The nominee’s qualifications also will be exhaustively examined by the American Bar
Association’s Standing Committee on the Federal Judiciary, either in the selection process prior to
nomination or immediately after the nomination is made.98 Finally, the nomination will be
scrutinized yet again, by staff of the Senate Judiciary Committee, upon Senate receipt of the
nomination from the President.
Also, a Senator likely will be guided by at least some political party considerations in the judicial
candidate search. Traditionally, the overwhelming majority of all federal judicial nominees come
from the same party as the nominating President, with more than half of all federal judges having

97 Robert A. Carp and Ronald Stidham, Judicial Process in America, 3d ed. (Washington: CQ Press, 1996), p. 240.
(Hereafter cited as Carp and Stidham, Judicial Process) Merit, the authors continue, “may mean no more than an
association with a prestigious law firm, publication of a few law review articles, or respect among fellow attorneys; a
potential judge need not necessarily be an outstanding legal scholar. Nevertheless, one of the unwritten codes is that a
judicial appointment is different from run-of-the-mill patronage,” with tradition creating “an expectation that the
would-be judge have some reputation for professional competence.” Ibid., pp. 240-241.
98 For detailed information on the process by which the ABA committee investigates and evaluates a judicial nominee,
see, on the ABA’s website, the background booklet entitled American Bar Association Standing Committee on the
Federal Judiciary: What It Is and How It Work
s, accessed at http://www.abanet.org/scfedjud/.
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been “‘politically active’ before their appointments.”99 The tradition of selecting candidates
having the same party affiliation as the President is linked to political patronage concerns of
home state Senators of the President’s party. In this context, a home state Senator in some
instances might regard a judgeship recommendation, at least in part, as “a reward for major
service” to the party, the President or the Senator.100 A scholarly study of the judicial appointment
process cites two reasons why most nominees for judicial office “must have some record of
political activity.... ”:
First, to some degree judgeships are still considered part of the political patronage system;
those who have served the party are more likely to be rewarded with a federal post than those
who have not paid their dues. Second, even if a judgeship is not given as a direct political
payoff, some political activity on the part of a would-be judge is often necessary, because
otherwise the candidate would simply not be visible to the president or senators(s) or local
party leaders who send forth the names of candidates. If the judicial power brokers have
never heard of a particular lawyer because that attorney has no political profile, his or her
name will not come to mind when a vacancy occurs on the bench.101
A Senator also may evaluate the suitability of a judicial candidate according to whether certain
groups or constituencies are adequately represented on the district or circuit court in question.
Among the representational considerations a Senator might take into account are a candidate’s
ethnicity, religion, gender, and place of residence. For instance, at the time a particular judicial
vacancy occurs, a Senator might be concerned with increasing the representation of a certain
ethnic group on that court, to make its membership more representative of the population of the
Senator’s state, or of that part of the state in which the judicial district is situated. Another
concern of the Senator, for example, might be to assure that membership in the district court or
courts in the Senator’s state represent all of the state’s geographic regions.
Senators, as well, may sometimes use philosophical or ideological criteria to evaluate judicial
candidates. In applying such criteria, a Senator might be concerned with what values—legal,
constitutional, political, social, economic, and philosophical—would underlie a candidate’s
reasoning and decision making as a judge, and whether, in light of these values, the candidate
would approach cases with impartiality or with prejudgment. A Senator also might be concerned
with gauging how the candidate ultimately might decide certain kinds of legal or constitutional
issues (especially any issues about which the Senator personally feels strongly), or in what
general direction the candidate might move a court if joined with judges of similar views.
Applying such criteria, a Senator might find a judicial candidate acceptable if his or her
orientation appeared sufficiently compatible with the Senator’s. The exact philosophical or
ideological criteria applied would vary among Senators, reflecting their individual views
regarding the courts, the Constitution, and public policy.102

99 Carp and Stidham, Judicial Process, p. 241.
100 Ibid.
101 Ibid., p. 242.
102 In recent years, Senators have expressed different views on whether it is appropriate to evaluate judicial nominees
by their ideology, judicial philosophy, or views on specific issues. A notable instance of this was a June 26, 2001,
hearing held by a Senate Judiciary subcommittee on the question,” Judicial Nominations 2001: Should Ideology
Matter?” For the complete record of that hearing, see U.S. Congress, Senate Committee on the Judiciary,
Subcommittee on Administrative Oversight and the Courts, The Judicial Nomination and Confirmation Process,
hearings, 107th Cong., 1st sess., June 26 and September 4, 2001 (Washington: GPO, 2002), pp. 1-109.
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Procedures Used to Identify and Evaluate Candidates
Senators have great discretion as to the procedures they will follow in identifying and evaluating
candidates for appointment to federal judgeships. These may range over a wide spectrum of
options—from procedures that are extremely informal, unstructured, and totally dependent on a
Senator’s individual judgment, to those formalized, structured, and reliant on judgments of others
beside the Senator. A Senator, for instance, may view his or her role in selecting a judicial
candidate as essentially making a personal choice, with any input from others being informal in
nature and not in any way limiting the Senator’s involvement in the search for candidates. By
contrast, at the other end of the spectrum, a Senator may use a formally constituted advisory body
of individuals, such as a nominating commission, not only to identify and evaluate judicial
candidates, but also to make recommendations that would be binding on the Senator or that the
Senator ordinarily would be expected to follow.
A Senator, as well, may take a procedural approach that falls somewhere between the two just
described or that has elements of each. For instance, a Senator may use the services of a formal
committee of expert advisers to identify and evaluate judicial candidates, but with the
understanding that the committee’s recommendations are advisory only, and not in any way
binding on the Senator.103
In a November 12, 2003, floor speech, a Senator illustrated, from his own experience, the
discretion and flexibility Senators have to tailor their own personal approach to judicial candidate
selection. In the speech, made during an extended Senate debate on judicial nominations,104 the
Senator stated that, over the course of his Senate career, he saw himself as bearing the following
responsibility—that if “you are going to make [judicial] recommendations to the President of the
United States, do so with care.”105 He described two somewhat different approaches that he had
taken during his tenure to identify candidates for lower court judgeships in his state. In the first 25
years of his Senate career, he noted,
I appointed a nominating committee ... made up principally of very distinguished attorneys
and judicial figures for whom I had respect and from all over my state. I knew these people
commanded respect, and they were very helpful in identifying, each time a judicial vacancy
occurred, several nominees.

103 Senate financial management regulations, it should be noted, anticipate that some Senators will use advisory panels
or groups to assist them in selecting judicial candidates. The regulations provide, in part, that individuals “who are not
Senate employees selected by Senators to serve on a panel or other body making recommendations for nominees to
Federal judgeships, service academies, U.S. Attorneys or U.S. Marshals may be reimbursed for transportation, per
diem, and for certain other expenses incurred in performing duties as a member of such panel or other body.” U.S.
Congress, Senate Committee on Rules and Administration, United States Senate Handbook (Washington: United States
Senate, November 2006), p. IV-43.
104 The speech was one made by many Senators during 40 hours of continuous Senate debate concerned with the
judicial appointment process and with whether to close debate on three controversial circuit court nominations. The
debate, which began in the evening of Wednesday, November 12, 2003, concluded on the morning of Friday,
November 14, 2003, when the Senate voted against motions to close debate on the circuit court nominations of Priscilla
Richman Owen of Texas, Carolyn B. Kuhl of California, and Janice R. Brown, also of California. For the entirety of
the 40-hour debate, see Congressional Record, daily edition, vol. 149, November 12, 2003, pp. S14528-S14785.
105 Sen. Richard G. Lugar, “Executive Session,” remarks in the Senate, Congressional Record, daily edition, vol. 149,
November 12, 2003, p. S14677.
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Without fail, I presented all of these nominees to the president, and his staff sifted through
them and in each case came up with one of the nominees, frequently the one recommended
first by the panel.106
In 2002, however, upon learning that two U.S. district court judges in his state would be retiring,
the Senator took a different approach to identifying judicial candidates.107 On this occasion, he
said, he wrote letters to the press throughout his state. In the letters, he outlined all the of the
qualifications he saw needed for a federal judge and invited “every well-qualified person to
apply.” Over the course of four months, “15 serious candidates emerged.” After reading all of
their applications, he interviewed five of the candidates—with a principal interest in their
professional skills, as well as in their “characterization of how they would fulfill their
responsibilities.” From the five interviewed candidates, the Senator submitted three names to the
White House, and two of those persons were nominated by the President (and subsequently
confirmed by the Senate).108
As mentioned above, another option for Senators is to delegate all or some of their power to
evaluate and recommend candidates for federal judgeships to judicial nominating commissions
(sometimes also referred to as “merit commissions”). Such commissions are ordinarily created by
Senators for the specifically stated purpose of identifying and recommending highly qualified
persons for federal judicial appointment.109 While the structure and operations of nominating
commissions vary, most have the following features in common:
• They have been formally, and publicly, constituted by one or both of their state’s
Senators (or by predecessor Senators of their state).
• They have a specific number of members, who have been publicly identified.
• Each commission has a clearly defined mission.
• Each publishes notices of judicial vacancies and invites applicants.
• The applicants fill out a standard application form or questionnaire and are
evaluated according to procedures that are the same for each application.
• Applications must be submitted, and the commission’s evaluation of applications
completed, by specified deadlines.
• The commission recommends not one but several candidates for a judicial
position (forwarding the names either to the home state Senators or directly to the
President).

106 Ibid.
107 In taking this different approach, the Senator said he “appreciated that those vacancies ... were going to come in to
the particular milieu about which we are now talking,” i.e., an atmosphere in the Senate Judiciary Committee of
heightened conflict over judicial nominations. Ibid.
108 Ibid.
109 For instance, in announcing the creation of such a commission in 2001, a Senator declared, “It is my hope that this
Committee can bring forward the best and most qualified candidates for the federal bench and provide a bipartisan
balance that can lead to speedy approval by the Senate.” Sen. Dianne Feinstein, “Senators Boxer and Feinstein
Announce Bipartisan Judicial Nomination Panel,” news release, May 22, 2001, accessed at http://feinstein.senate.gov/
releases01/judicial_nomination_panel.html.
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• Typically, commission memberships include prominent attorneys in the state or
local bar, and sometimes leaders of other community groups, and they often, if
not always, represent both political parties.110
The advent of widespread use of nominating commissions to identify candidates for federal
judgeships came with the presidency of Jimmy Carter, who, at the start of his Administration in
1977, urged every Democratic senator to establish a commission for the selection of candidates
for U.S. district judge positions.111 By 1980, the last full year of the Carter presidency, senatorial
commissions were operating in 31 states.112
Although President Reagan in 1981 disbanded the commission created by President Carter to
identify circuit court candidates,113 his Attorney General urged Republican Senators to use
commissions (as Democratic Senators had done during the previous four years) to screen
candidates for district court judgeships.114 In the years that followed, however, senatorial use of
nominating commissions decreased substantially. In November 2007, a Brookings Institution
study reported that 16 senators in 8 states at that time were using commissions. The study found
that most of these commissions had bipartisan memberships, a circumstance attributed to political
necessity:
Bipartisan commission membership is essential in this period of polarized politics, with both
majority and minority senators ready and able to contest nominations. Realizing this, the
Democratic senators who use commissions today appoint some Republican members, named
either by themselves or by state Republican leaders, similar to what Republican senators did
during the Carter administration.115
Since the Brookings study, an increased number of Senators reportedly have been using
commissions or similar entities to aid them in screening and evaluating candidates for federal
judgeships. In September 2010, the American Judicature Society, on its website, identified 18
states in which 31 current Senators were listed as using commissions or formal panels or

110 For thumbnail descriptions of the structure and operations of nominating commissions currently used in the federal
judicial selection process in certain states, see http://www.judicialselection.us/federal_judicial_selection/
federal_judicial_nominating_commissions.cfm?state=FDsee. For comprehensive state-by-state information on the
structure and operations of nominating commissions used by U.S. Senators in the lower court selection process during
the presidency of Jimmy Carter, see Neff, United States District Judge Nominating Commissions.
A sound rationale for nominating commissions, a recent study concluded, is that they “can be forums of genuine,
constructive consultation in the initial phase of nominee selection” and help Senators and the President “strain out
fringe candidates with more political clout than potential judicial ability.” Russell Wheeler, “Prevent Federal Court
Nomination Battles: De-Escalating the Conflict over the Judiciary,” Brookings Institution Position Paper, November
20, 2007, p. 12, accessed at http://www.brookings.edu/. (Hereafter cited as Wheeler, “Prevent Federal Court
Nomination Battles.”)
111 Goldman, Picking Federal Judges, p. 244, observing that before 1977 Senators “from only two states (Florida in
1974 and Kentucky in 1976) had commissions.”
112 Ibid.
113 Ibid., p. 290.
114 A March 1981 Department of Justice memorandum by Attorney General William French Smith encouraged
Senators to utilize “screening mechanisms”—which it said included “advisory groups or commissions”—to “ensure
that highly qualified candidates are recommended.” “Department of Justice; Memorandum on Judicial Selection
Procedures, 3/2/1981,” United States Law Week, vol. 49, no. 37, 1981, p. 2604. See also Stuart Taylor Jr., “Smith
Issues Rules for Naming Judges,” The New York Times, March 7, 1981, sec. 1, p. 11.
115 Wheeler, “Prevent Federal Court Nomination Battles,” pp. 13-14.
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Role of Home State Senators in the Selection of Lower Federal Court Judges

committees to review judicial candidates.116 In addition, in three states where neither U.S. Senator
was of the President’s party, commissions to identify, screen, and recommend judicial candidates
to the President had been established by House Members of the President’s party. (The entities
were established either by the senior House Member of the state’s congressional delegation or by
the entire House party delegation.)117
A few months earlier, in June 2010, the increased use by Senators of judicial nominating
commissions was underscored by a new report entitled Options for Federal Judicial Screening
Committees.118
The report, issued by two non-partisan organizations,119 stated that its purpose was
to describe how judicial “screening committees” (a phrase it said it preferred over “judicial
nominating commissions”) have been constructed and how they typically work. The report, at the
outset, identified reasons why Senators might choose to use such committees. These, it said,
included a hope that an individual who enjoys the endorsement of a committee may move to
nomination and confirmation more quickly. … Other advantages of a committee process
may include the ability to screen applicants and catch problems before any ABA or White
House involvement; providing a voice to varied constituencies, including non-lawyers and
members of both political parties; and inviting applications from individuals who might not
otherwise come to the senators’ attention.120
Senators who use nominating commissions to identify and evaluate judicial candidates often, if
not always, require their commissions to follow clearly defined rules of procedure. In Wisconsin,
where its two Democratic Senators have chartered a commission to advise them in the selection
of candidates to fill U.S. district court vacancies in that state—as well as for vacancies for U.S.
attorneys in Wisconsin and U.S. circuit court judgeships “which are appropriately considered
Wisconsin seats”—the charter lays out the rules of procedure in detail. The charter provides that
the commission shall consist of 11 members in the case of district court and U.S. attorney
vacancies, or 12 members in the case of a circuit court vacancy. The number of members that
each Senator may appoint to the commission varies, depending on whether the Senator is of the
same political party as the President.121 When a court vacancy occurs, the charter provides

116 See The American Judicature Society, “Federal Judicial Selection,” accessed at http://www.judicialselection.us/
federal_judicial_selection/federal_judicial_nominating_commissions.cfm?state=FD.
117 Ibid.
118 The Governance Institute and the Institute for the Advancement of the American Legal System, Options for Federal
Judicial Screening Committees: Things to Consider in Establishing and Operating a Committee to Advise Legislators
about Candidates for District Judgeships (and Other Judicial System Positions)
, June 2010, 26 pp., accessed at
http://www.du.edu/legalinstitute/pubs/FederalJudicialSelection.pdf. (Hereafter cited as Governance Institute, Options
for Federal Judicial Screening Committees.
)
119 The report was prepared jointly by the Governance Institute and Institute for the Advancement of the American
Legal System (IAALS) at the University of Denver. The former, in the report’s preface, described itself as “a small
non-partisan organization in Washington, D.C. that explores problems associated with the separation of powers in the
federal system, including the gap between courts and Congress, contentiousness in federal judicial selection, courts and
the media, and inspectors general and other aspects of the federal bureaucracy.” IAALS described itself as a “national,
non-partisan organization dedicated to improving the process and culture of the civil justice system.” Ibid.
120 Ibid. (Executive Summary).
121 “Wisconsin Federal Nominating Commission Charter,” 6 pp., at American Judicature Society website link, accessed
at http://www.judicialselection.us/federal_judicial_selection/federal_judicial_nominating_commissions.cfm?state=FD
under “Wisconsin” heading. When both Senators are of the same political party as the President, four members are
appointed by each Senator; when one Senator is of the same political party as the President, five members are
appointed by that Senator, with three members appointed by the other Senator; and when both Senators are of the
opposite political party as the President, two members are appointed by each senator, with four members of the
(continued...)
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specific timetables for seeking candidates and accepting applications, as well as for evaluating the
candidates’ qualifications. Further, the charter sets organizational and voting procedures for the
commission’s members, including a quorum requirement and the number of affirmative votes
required to recommend a candidate for nomination. Finally, it states that after the commission has
designated not less than four nor more than six individuals as best qualified to fill a vacancy, the
commission shall immediately notify the state’s Senators as to the names of the individuals.122
In the above example, use of a nominating commission can be seen as largely removing Senators
from the initial search for judicial candidates as well as from the evaluation of all of the
candidates who initially submit applications. The arrangement, however, retains for the Senators
the opportunity to evaluate the smaller number of applicants who ultimately are recommended by
the commission. Further, the Senators are not required by the language of the commission’s
charter to forward to the President every commission recommendation that they receive. Absent a
commitment to be bound by a merit panel’s recommendations, Senators retain the discretion to
further inquire, on their own, into the qualifications of persons recommended by the commission
and to pass along to the President only those recommendations that they find acceptable.123
Interaction with Administration During Nominee
Selection Process

Administration Entities and Their Roles
In every presidential Administration in recent decades, there has been an office assigned principal
responsibility for consulting with Senators regarding judicial appointments in their state. When a
federal judgeship in a Senator’s state becomes vacant, or there is the imminent prospect of a
vacancy occurring, a frequent scenario will find the Senator or top aides to the Senator in contact
with, or contacted by, this office. In some recent Administrations, officials in the Department of
Justice consulted with Senators about judicial appointments. Thus far during the presidency of
Barack Obama, however, the White House counsel’s office has played the primary liaison role
with Senators regarding judicial appointments (as it did during the presidency of George W.

(...continued)
commission appointed “by the most senior elected official of the President’s party.” In all three situations just noted,
two more members are appointed by the state bar of Wisconsin. In the case of district judge or U.S. attorney
appointments, the eleventh member of the commission is appointed by the dean of the University of Wisconsin Law
School, or the dean’s designee, for consideration of vacancies in the Western District of Wisconsin, or by the dean of
the Marquette University Law School, or the dean’s designee, for vacancies in the Eastern District of Wisconsin. In the
case of circuit court appointments, the commission’s eleventh and twelfth members are the deans of both law schools,
or their designees.
122 Ibid.
123 In some past instances, Senators have reportedly considered themselves bound to accept, and pass along to the
President, the recommendations of their nominating commissions. A study of judicial selection during the presidency
of Jimmy Carter, when senatorial use of nominating commissions was widespread, found that the commissions could
be divided into two groups—”based on whether the commissions submitted their lists of candidates directly to the
executive branch without alteration by their sponsors, or to their sponsors, who reserved the right to reduce the lists and
submit smaller lists of selected candidates to the executive branch. In 17 states, senators chose to take their
commissions’ lists and select one or more candidates from their lists for each vacancy.” Neff, United States District
Judge Nominating Commissions
, p. 65.
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Role of Home State Senators in the Selection of Lower Federal Court Judges

Bush). As the primary consultative link with Senators, it is this office that ordinarily receives
Senators’ recommendations of specific individuals for judicial appointment.124
In recent presidential Administrations, the task of evaluating the background and qualifications of
judicial candidates has been apportioned between key staff persons in the White House counsel’s
office and the Department of Justice.125 These staff, aided by the research of subordinate White
House or DOJ personnel, as well as by investigations of the Federal Bureau of Investigation (FBI)
into the backgrounds of judicial candidates, decide which candidates to recommend to the
President for nomination. In recent presidencies, the selection process has consisted of a number
of basic preliminary steps, including, for any given Administration, all or nearly all of the
following:
• At the outset, the names of judicial nominee candidates are identified (as
recommended by Senators or others outside the Administration or as generated
from within the Administration).
• The candidates fill out various forms and questionnaires, including a personal
background information form for the FBI, a financial disclosure form, a White
House questionnaire, and a questionnaire from the Senate Judiciary Committee.
(Sometimes, the Administration waits until it has narrowed down the nominee
search to one candidate, requiring only that candidate to fill out the
aforementioned forms.)
• An initial evaluation (or “preliminary vetting”) of the candidates is conducted,
which includes interviewing some or all of the candidates (either by phone or in
person) and reviewing publicly available information about them (such as their
published writings and news media accounts of their past activities in public
life).126
• The candidates also might, or might not, be asked by the Administration to fill
out a questionnaire of an American Bar Association committee, which evaluates
and rates the professional qualifications of nominees for federal judgeships.127

124 Cassandra Butts, May 13, 2009, telephone conversation. A Department of Justice official involved in the judicial
selection process during the first two years of George W. Bush’s presidency explained, in a January 6, 2003, interview
with scholars, that the “outreach to senators, the liaisons for senators, are done by the White House Counsel’s office....
The White House Counsel’s Office handles the contact and consultations to all home state senators, even on circuit
courts, and even if the person is from the opposite party.” Goldman et al., “W. Bush Remaking the Judiciary,” p. 287.
The same scholars, after interviewing Bush Administration officials two years later, reiterated their earlier impression
about the consultative role played by the White House: “If there is one domain in the selection process that remains an
exclusive preserve of the White House Counsel’s Office, as we found two years ago, that area involves consultation
and negotiation with senators about specific nominees or potential nominees.” Goldman et al., “W. Bush’s Judiciary:
The First Term Record,” p 247.
125 In the Administration of President George W. Bush, the lower court nominee selection process was directed by a
judicial selection committee consisting of staff from the White House counsel’s office and the Department of Justice’s
Office of Legal Policy (OLP).
126 If FBI and other forms and questionnaires already have been filled out, these will be reviewed by Administration
vetters for any points that might need to be raised or cleared up when a candidate is interviewed. Vetters also might
make telephone contact with individuals named in the questionnaires (such as the chief judges of the federal district and
appeals courts in which the candidates practiced law) to elicit their impressions of the candidates.
127 The committee in question is the ABA’s Standing Committee on the Federal Judiciary. From 1952, during the last
months of the Truman presidency, to the end of the Clinton presidency in 2001, the Standing Committee played a
quasi-official advisory role to each Administration in the lower court selection process, confidentially evaluating the
(continued...)
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• The search is narrowed down to one candidate, who is recommended to the
President for more intensive evaluation;
• The President clears the candidate for this more intensive evaluation, known as
“detailed vetting.”
The detailed vetting phase of the selection process, for any given Administration in recent
decades, has included all, or nearly all, of the following steps:
• Staff from the Department of Justice or the White House or both carefully review
the candidate’s written opinions or other legal writings (depending on whether
the candidate is a judge or a practicing attorney), as well as the forms and
questionnaires filled out by the candidate, and interview persons in the legal
community who have had past contact with, or have knowledge about, the
candidate.
• The FBI conducts a confidential background investigation of the candidate,
which typically takes four to six weeks.
• The ABA Standing Committee on the Federal Judiciary, if informed by the
Administration of the candidate under consideration (and upon receipt of an ABA
questionnaire filled out by the candidate) also conducts an investigation of the
candidate.128 Upon completing its investigation, it informs the Administration
whether, according to its rating system, it has found the candidate to be
“Qualified,” “Well Qualified,” or “Not Qualified.”129
• Judicial selection staff in the Administration might conduct a follow-up interview
of the candidate (either in person or by telephone) to address any new questions
or confirm new information arising out of the detailed vetting process.

(...continued)
professional qualifications of candidates for lower court judgeships, prior to their nomination. During this process, each
Administration informed the ABA committee of persons under final consideration for nomination to district or circuit
court judgeships, with the President awaiting the committee’s evaluations of the candidates before deciding whether to
nominate. See Archived CRS Report 96-446, The American Bar Association’s Standing Committee on Federal
Judiciary: A Historical Overview,
by Denis Steven Rutkus. (Copy available from author.) In 2001, however, President
George W. Bush ended this process, excluding the ABA committee from any further role in the pre-nomination judicial
selection process. Excluded from making pre-nomination evaluations, the committee, for the remainder of the Bush
presidency, performed an evaluation of judicial candidates only after their nominations had been made by the President.
(Evaluations were then sent to the Senate Judiciary Committee, which typically awaited receipt of the ABA evaluations
before it held confirmation hearings on the nominations in question.) In March 2009, however, the president of the
ABA announced that the Obama Administration had reinstated the White House practice of seeking the ABA
committee’s evaluation of judicial candidates before making nomination decisions. American Bar Association,
“Statement of H. Thomas Wells Jr. President, American Bar Association Re: The American Bar Association Standing
Committee on the Federal Judiciary,” news release, March 17, 2009, accessed at http://www.abanet.org/scfedjud/
wellsstatement.pdf. See also Tony Mauro and David Ingram, “White House Invites ABA Back into the Fold,” Legal
Times
, vol. 32, March 23, 2009, p. 14.
128 As noted above, the Obama Administration has reinstituted the White House practice, discontinued by the previous
Bush Administration, of informing the ABA committee of judicial candidates it is considering and seeking the
committee’s evaluation of these candidates before making nomination decisions.
129 For an explanation of the standards and procedures used by the ABA Standing Committee on the Federal Judiciary
in rating candidates for lower federal court judgeships, see the booklet American Bar Association Standing Committee
on the Federal Judiciary: What It Is and How It Works
, accessible at http://www.abanet.org/scfedjud/
federal_judiciary07.pdf.
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• Administration staff evaluate the results of the detailed vetting effort and
recommend to the President whether to nominate the candidate.
In the Administration of President Barack Obama, the various steps in the selection process are
overseen by the White House counsel’s office. It has been tasked to take the lead, through its own
preliminary research and investigatory efforts, in identifying prospective circuit court candidates,
whose names are then provided to Department of Justice staff (and later the FBI) to investigate
more thoroughly. For district court candidates, the counsel’s office reviews the recommendations
of home state Senators (or of other home state officials when neither Senator is of the President’s
party).Where, as requested by the Administration, Senators have recommended three candidates
for a district court vacancy, the counsel’s office typically, based on its own preliminary review,
selects one of the candidates to be investigated more intensively by Department of Justice staff.130
Also, as mentioned earlier, the responsibility for liaison with Senators regarding the lower court
selection process continues to reside with the counsel’s office, as it did during the Administration
of President George W. Bush. Staff in this office receive input from Senators regarding judicial
candidates and consult with Senators or their staff at different steps in the judicial candidate
evaluation process.131
Clarifying the Senator’s Role
Initial contacts between an administration and a Senator’s office regarding judicial appointments
can be expected to clarify the nature of the Senator’s recommending role.132 A principal question
to be addressed in these contacts will be the degree to which the Administration, in its judicial
candidate search, will rely on recommendations from the Senator. The Senator, for instance, will
want to know whether the Administration will give sole or primary consideration to candidates
that the Senator recommends for a particular judgeship—and, further, whether the
Administration, if not comfortable with the Senator’s candidates, will seek, and rely primarily on,
additional recommendations from the Senator (rather than on recommendations coming from
others). This role typically might be expected when the Senator is the only Senator in the state of
the President’s party, or if the state’s other Senator is also of the President’s party and the two are
making joint recommendations, and if the vacancy to be filled is on a district court.
Under different circumstances, however, the Administration, might intend the Senator to have a
lesser role. The Administration, for example, might welcome recommendations from the Senator,
while also encouraging recommendations from other sources and while conducting its own search
for candidates. This role might often be the case if the Senator is of the President’s party but the
appointment in question would be to a circuit court. In a third type of arrangement, it might be
understood that the Senator would not be regarded as a primary source for candidate
recommendations; however, as a courtesy, the Administration would consider any
recommendations the Senator might make, apprise the Senator of judicial candidates under

130 Cassandra Butts, May 13, 2009, telephone conversation.
131 Ibid.
132 Subsequently, during a particular presidency, a Senator might consider it necessary to have additional contact with
the Administration to confirm or further clarify the nature of the Senator’s recommending role. This situation might
arise, for example, if the Senator believes that the Administration is not fully conforming to earlier agreed-upon
procedures regarding the Senator’s role in the judicial selection process, if new Administration officials assume
responsibility for judicial candidate selection or liaison with Senators on judicial selection matters, or if a new Member
is elected to the state’s other Senate seat.
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serious consideration, and invite the Senator’s opinions about those candidates before one were
selected as a nominee. This often might be the case when the Senator is of the opposition party,
regardless of the kind of judgeship in question, and sometimes might be the case when the
Senator is of the President’s party and the appointment in question is to a circuit court.
Another question to be addressed in preliminary consultations between a Senator’s office and the
Administration will be the number of persons, if any, that the Senator is expected to recommend
for a single judicial vacancy. In recent presidencies, the Administration practice usually has been
to request that a Senator supply the names of at least three candidates for a judgeship, and this,
CRS has been told, is the practice of the Obama Administration in identifying district court
candidates.133 This practice affords the President more options in making a final choice than
would be possible with only one candidate under consideration. If multiple recommendations are
requested by the Administration, a Senator might wish to establish whether this is a preference or
a requirement. If a requirement, the Senator might wish to inquire into the Administration’s
possible willingness to initially evaluate only the Senator’s first choice and, if finding that choice
acceptable, to dispense with evaluating the other recommended candidates.134
Also a topic of possible discussion would be the Senator’s relationship with the other state’s
Senator and the extent to which the two Senators would be coordinating or sharing the role as
recommender. If one Senator would be taking the lead, to what extent would that Senator, or
Administration officials, assume the responsibility for consulting with the other Senator regarding

133 After reviewing the backgrounds of the three candidates, Administration staff select one to undergo a more detailed
vetting process. Cassandra Butts, May 13, 2009, telephone conversation.
134 President Ronald Reagan’s Administration appears to have been the first to institute a regular requirement that a
home state Senator provide the names of at least three candidates for a vacant judgeship. This practice was continued
by the Administration of George H. W. Bush, observed part of the time by the Clinton Administration, and re-instituted
as a systematic practice by the Administration of George W. Bush.
Such Administration requirements, however, have not always prevented Senators from expressing strong preferences
for one candidate or from securing for that candidate an “inside track” in the Administration’s selection process. For
instance, during the Reagan presidency, an attorney working on judicial selections in the White House counsel’s office
noted that “some of our fiercest battles were with same-party Republican senators on district judges, where President
Reagan sought to institute a very controversial rule. He insisted on receiving three names from Republican senators for
district court nominees. We tried to enforce that rigorously. We had some senators who would say, ‘If President
Reagan wants three names, I’ll give him three names, Smith, Smith, and Smith.’ Ultimately, Judge Smith got
appointed.” Alan Charles Raul, associate counsel to President Ronald Reagan, quoted in, “Selecting Federal Judges;
The Role and Responsibilities of the Executive Branch, Judicature, vol. 86, July-August 2002, p. 20.
For district court appointments during the presidency of George H. W. Bush, a scholar noted, “the Justice Department
asks Republican senators to submit three names for Department consideration. There has been some resistance on the
part of some senators, but the Administration is not sympathetic to senators who submit one name and insist that person
be named. However, the Justice Department will consider one candidate at a time provided that if the person proposed
is not satisfactory to Justice, the senator will submit another name until a suitable candidate is found.” Sheldon
Goldman, “The Bush Imprint on the Judiciary: Carrying on a Tradition,” Judicature, vol. 74, April-May 1991, p. 297.
During most of the Clinton presidency, the Justice Department “evaluated one person at a time for each district court
vacancy ... although the proclivity was relaxed somewhat during the last two years in contentious settings where
[Assistant Attorney General Eleanor D.] Acheson noted, ‘we knew the whole thing was going to take a whole lot
longer. We found ourselves on more than one occasion looking at two or three people simultaneously and making a
decision about whom to go with.’ With appeals court positions, it remained more common to evaluate multiple
candidates for specific slots.... ” Sheldon Goldman, Elliot Slotnick, et al., “Clinton’s Judges; Summing Up the Legacy,”
Judicature, vol. 84, March-April 2001, p. 231. (Hereafter cited as Goldman, “Clinton’s Judges.”)
For the Administration of President George W. Bush, the standard practice was to require that home state Senators
recommending candidates for district judgeships provide “multiple names.” November 21, 2003, telephone interview
with attorney Sheila Joy, Office of Legal Policy, Department of Justice.
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the search for, and evaluation of, judicial candidates? If an advisory panel were to be used, would
it serve that Senator alone, or would the panel’s recommendations, before being forwarded to the
Administration, be cleared by the other Senator as well? If neither Senator were of the President’s
party, would designated officials in the President’s party having a judicial recommendation role in
that state be making recommendations to the Administration in close consultation with the
Senators or apart from them?
If the vacancy to be filled is that of a district court judgeship, the long-standing practice of
presidential administrations ordinarily has been to give the primary recommending function to
Senators of the President’s party (or to House Members or state officials of the President’s party
when there are no Senators from the states of the vacancies). For circuit court nominations, by
contrast, the usual practice of the Clinton and George W. Bush presidencies, in keeping with long-
standing custom, was to center consideration on candidates whom the Administration selected on
its own, rather than on persons recommended by home state Senators. Similarly, President
Obama, in the words of an Administration source, “retains the prerogative” to select circuit court
nominees on his own,135 although, it also has been emphasized, “home-state Senators are
consulted in the circuit court candidate selection process.”136
An administration, however, sometimes might be amenable to departing from customary
practices. It might, for example, be amenable to allowing home state Senators not of the
President’s party, in some circumstances, a greater than usual role in recommending district court
candidates, or to allowing home state Senators of either party a greater than usual role in
identifying circuit court candidates for the Administration to consider.137 Further, even if afforded
only a marginal role in recommending candidates at the outset, a home state Senator, regardless
of party affiliation, ordinarily can expect to be consulted by the Administration subsequently
during the selection process. The typical purpose of such consultation will be to apprise the
Senator of candidates that the Administration is seriously considering and to afford the Senator an
opportunity to express his or her views concerning the candidates.138

135 Cassandra Butts, May 13, 2009, telephone conversation..
136 Jonathan Kravis, April 9, 2010, statement.
137 For example, in 2008, the last full year of George W. Bush’s presidency, his Administration, on at least four
occasions, relinquished to home state Senators the selection of persons for the President to nominate to circuit court
judgeships. This, as noted earlier, occurred when the President, in three instances, withdrew circuit court nominations
opposed by home state Senators in favor of new nominees recommended by the Senators and, in a fourth instance,
when the President made an initial selection of a circuit court nominee from among a list of persons recommended
jointly by the Senators of the nominee’s state. In 2009, early in the Administration of President Barack Obama, home
state Senators indicated, in two instances, that it was they who had recommended persons selected by the President to
be circuit court nominees. See Sen. Evan Bayh, “Bayh Supports Nomination of Judge [David] Hamilton for Seventh
Circuit,” news release, March 17, 2009, accessed at http://www.bayh.senate.gov/news/press/release/, in which Sen.
Bayh stated, “I was proud to work with Senator [Richard G.] Lugar to recommend Judge Hamilton for this lifetime
appointment”; and Sen. Barbara A. Mikulski, “Mikulski, Cardin Applaud Nomination of Judge Andre M. Davis to
Court of Appeals for the Fourth Circuit,” news release, April 2, 2009, accessed at http://www.mikulski.senate.gov/
Newsroom/PressReleases/, in which Sen. Mikulski stated, “I was proud to suggest Judge Davis to the President.”
138 The Administration of President George W. Bush asserted on various occasions that it was very open to judicial
candidate recommendations from Senators of both parties as well as to their views about other candidates under
Administration consideration. At the conclusion of President Bush’s first term, for instance, a White House counsel
told scholars, “We always consult with home state senators, Democrats or Republicans, to find out if there are
candidates that they would like for us to consider. We are also interested in receiving their feedback on candidates were
are considering. The consultation has been extensive and consistently so.” Dabney Friedrich, associate White House
counsel, quoted in Goldman et al., “W. Bush’s Judiciary: The First Term Record,” p. 247.
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Accordingly, a home state Senator presumably will want to use his or her initial contact with the
Administration, at the very least, to clarify the Administration’s general policy regarding the
recommending role of Senators in the selection of lower court nominees. In some cases, the
Senator, during this initial or subsequent contact, might also wish to explore whether he or she
can play a larger recommending role than ordinarily contemplated by Administration policy.
Further, the Senator might want to clarify, when a home state judicial vacancy arises, how often
and for what purpose the Administration would intend to consult with the Senator until a nominee
were actually selected.
Consultation at Different Stages of the Process
Consultation between a Senator and the Administration over the selection of a judicial nominee
can take different forms, depending on the stage reached in the selection process. Early in the
process, as already noted, consultation may consist primarily of the Senator providing input to the
Administration. The input in many cases will be in the nature of recommending a particular
candidate or list of candidates for a judgeship. If providing more than one name, the Senator
might or might not rank the candidates in order of the Senator’s preferences. The input in some
cases might also take a negative form, with the Senator expressing opposition to particular
candidates or kinds of candidates. (A Senator might provide this kind of input if he or she
understood that the Administration would be relying on its own internally generated list of
candidates or on recommendations from sources other than the Senator.)
In some instances, a Senator may convey recommendations directly to the President—for
example, in an in-person meeting, by telephone, or by letter—without White House or senatorial
staff functioning as intermediaries. A Senator, or an aide on the Senator’s behalf, also may submit
recommendations to the President indirectly, by transmitting them, for example, in written or
other form to the Administration office charged with serving as liaison to Senators on judicial
appointment questions.
As the selection process moves forward, the onus for engaging in further consultation shifts to the
Administration, to apprise the home state Senator where things stand. The point at which this first
occurs may vary somewhat, depending on the particular judicial position to be filled or on the
understandings reached earlier between the Administration and the Senator. Often, however,
renewed consultation can be said to come when the Administration is close to concluding, or has
concluded, its preliminary evaluation of a candidate or candidates for a judgeships. Based in part
on its interviews of the various candidates (if there is more than one candidate) and on a
preliminary examination of the available record of the candidates, the Administration at some
point will be in a position to apprise the home state Senator whether one candidate has emerged
as the clear favorite.
Various policy statements made in recent decades by chairs of the Senate Judiciary Committee
have expressed the view that home state Senators should be informed when an administration has
narrowed its list of candidates for a judgeship to one candidate. The expectation of the policy
statements has been that the home state Senators will be so apprised before the President approves
that candidate for a more intensive “formal clearance”—before the candidate undergoes a
complete FBI background investigation and other aspects of the “detailed vetting” process
discussed earlier. If the Administration is considering the selection of someone other than a
candidate recommended by the Senator, the Administration at this point may apprise the Senator
of this fact, affording the Senator an opportunity to express any opinions or concerns about the
candidate, including whether the Senator might oppose the candidate if nominated. In some
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instances, a preliminary review of candidates recommended by a Senator might result in the
Administration deciding that none would be acceptable. At that point the Senator might be called
on to provide additional recommendations for the Administration to consider (or, perhaps less
often, be informed that Administration staff have decided on a candidate of their own to
recommend to the President).
If a judicial candidate under consideration for “formal clearance” is a person recommended by the
home state Senator, such clearance, when it occurs, of course, ordinarily will meet with the
Senator’s wholehearted approval. The subsequent “vetting” of the candidate, as already
discussed, will involve a comprehensive FBI investigation of the candidate and might also
include a review of the candidate’s past rulings or legal writings, and the questionnaires he or she
filled out, as well as an initial or follow-up interview of the candidate, and interviews of persons
in the legal community who have had past contact with, or knowledge about, the candidate.
During this investigation, Administration consultation with the home state Senator might entail
little more than providing routine status reports on the progress of the clearance process,
particularly if nothing problematic about the candidate is found.
By contrast, if a candidate under consideration for formal clearance has not been recommended
by a home state Senator, subsequent Administration consultation with the Senator might, or might
not, take place at several points. If it acts in keeping with the kind of consultative process called
for in past policy statements of the Judiciary Committee, the Administration might notify the
Senator that it is preparing to begin a formal clearance process for a particular candidate,
affording the Senator an opportunity to provide feedback, before it actually initiates the clearance
process. Subsequently, if the Senator, in providing feedback, objects to the candidate, the
Administration, might in turn, as a courtesy (and in accord with past Judiciary Committee policy
statements), notify the Senator that the formal clearance process is being initiated despite the
Senator’s objections.
If, at the conclusion of the clearance process, the President decides to nominate the candidate,
consultation again can be expected, particularly if the home state Senators are of the President’s
party. Specifically, the Administration, if it acts in keeping with past Judiciary Committee
statements, will notify home state Senators (whether or not they recommended the person
involved) before the nomination is actually made. The Administration, however, is not obliged,
by any rule or long-standing custom, to engage in all of the consultative steps just discussed. In
the absence of any requirements to engage in pre-nomination consultation, a President’s
Administration might not always notify home state Senators of judicial candidates it is
considering.
When a Nominee Is Selected against the Advice of,
or Without Consulting, a Senator

Sometimes, as noted, a President might select a district or circuit court nominee against the
advice of one or both home state Senators. On other occasions, the Administration might provide
a home state Senator little or no opportunity to provide any feedback before a candidate is
selected by the President as a judicial nominee. In either situation, the Senator will then face the
question of whether to oppose the nomination, either first in the Senate Judiciary Committee or
later on the Senate floor.
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Option of Opposing the Nomination in Committee or on the
Senate Floor

From the standpoint of a Senator, opposition to a lower court nomination in his or her state may
serve a number of purposes, including the following:
• Preventing confirmation. The Senator’s opposition, if successful, will prevent the
nomination from receiving Senate confirmation. Opposition by the Senator will
succeed if it causes the nomination to fail to be reported out of committee or to
receive Senate consideration or a Senate vote to confirm.
• Averting a similar kind of nomination. Successful opposition to the President’s
nominee (preventing Senate confirmation) might dissuade the President from
making a new nomination to the judgeship of someone else as objectionable to
the Senator as the original nominee.
• Causing the Administration to take consultation more seriously. A Senator’s
opposition to a judicial nominee, based all or in part on an alleged lack of
Administration consultation with the Senator, might persuade the Administration
to consult more closely with the Senator when selecting future home state
judicial nominees.
• Preserving the appointment for a later President or Congress. Successful
opposition to the judicial nomination might, in some situations, delay the filling
of the judgeship in question until a new President is in office or until a new
Congress is convened (where, in either case, the Senator might have more
influence over the selection of home state judicial appointments).
• Drawing attention to policy differences with the Administration. The inability of
the Administration and the Senator to agree on a judicial nominee might suggest
that they have different policy objectives for judicial appointments, or use
different criteria in evaluating judicial candidates. In such situations, a Senator
might wish to publicize, rather than conceal, these differences, to promote his or
her own policy preferences and call those of the Administration into question.
If the Senator decides to oppose the nomination, the first available recourse will be to exercise the
prerogatives afforded to a home state Senator by the blue slip policy of the Senate Judiciary
Committee. As already discussed, the blue slip policy determines what effect the disapproval of a
home state Senator (indicated by the return to the committee of a negative blue slip or by the non-
return of the blue slip) will have on the prospects for a nomination to be considered by the
committee. The blue slip policy is set by the chair of the Judiciary Committee, usually at the
outset of a Congress. Over the years, particularly when the majority party in the Senate has
changed (resulting in a new chair of the Judiciary Committee), or when an outgoing President has
been succeeded by a President of the opposite party, the committee’s blue slip policy also has
changed—sometimes barely noticeably, but other times in more controversial ways.
The most important difference between various blue slip policies applied over the years concerns
whether, under a particular policy, a home state Senator may block committee consideration of a
nomination simply by returning a negative blue slip (one expressing opposition to the
nomination) or declining to return the blue slip. The blue slip policy of some committee chairs,
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including the ones in effect during the 109th, 110th, and 111th Congresses, has been to afford that
basic veto power to the home state Senator.139 When the committee’s policy is to consider a
nomination only if both home state Senators have returned positive blue slips, a refusal of one of
the Senators to do so will block the nomination. The Senator, in such a situation, might initially
have been unsuccessful in trying to prevent the President from nominating a particular person.
Nevertheless, under the committee policy in effect in the three most recent Congresses, the
Senator ultimately can succeed in preventing Senate confirmation of the nominee, by using the
Judiciary Committee’s blue slip procedure to stop the nomination in committee.
The policy of some other chairs of the committee, by contrast, has been not to allow a negative
blue slip, or non-return of a blue slip, by itself automatically to block consideration of the
nomination in committee. For instance, the policy sometimes has been applied to allow
consideration of a judicial nomination when one or even (in very rare instances) both home state
Senators have declined to return positive blue slips, or to allow a negative or unreturned blue slip
to block committee consideration only if the Administration, in the view of the committee chair,
did not consult in good faith with a home state Senator prior to selecting the nominee.140
When the Judiciary Committee’s blue slip policy is not to allow a single home state Senator to
block committee consideration of a lower court nominee, the next recourse available to the
Senator is to convey to the committee his or her objections about the nominee, if and when it
considers the nomination. The Senator might have objections based on concerns about the fitness
of the nominee to be a federal judge, or about the nature or lack of consultation that the
Administration engaged in with the Senator prior to the selection of the nominee. The Senator
might wish to convey these concerns as an argument to the committee against voting on the
nominee or, in the event of a vote, that the vote be to reject. Even if the Senator anticipates that
the committee will vote to report the nomination, the Senator might wish to put his or her
concerns about the nominee on record with the committee, to set the stage for making the same
case again, before the full Senate.
Another tactical option for the Senator will be to try to persuade one or more members of the
Judiciary Committee to engage in a filibuster in committee—in an effort to prevent the committee
from voting on the nomination.141 Rule IV of the Judiciary Committee’s rules of procedure
provides that debate on a matter before the committee shall be terminated if a non-debatable
motion is made to bring the matter “to a vote without further debate,” and it “passes with ten
votes in the affirmative, one of which must be cast by the minority.”142 Depending on how the
chair of the Judiciary Committee interprets Rule IV, a Senator opposing a nomination might, or
might not, succeed in preventing a committee vote on it (and thus block it in committee). The
Senator will succeed in a filibuster against the nominee, for instance, if none of the minority
members of the Judiciary Committee votes in favor of a motion to terminate debate and if the

139 See footnote 36.
140 See, for example, table entitled “Senate Judiciary Committee Blue-Slip Policy by Committee Chairman (1956-
2003),” in Archived CRS Report RL32013, The History of the Blue Slip in the Senate Committee on the Judiciary,
1917-Present
, by Mitchel A. Sollenberger, p. 26. See also, in same report, pp. 13, 22, which discuss two instances, one
in 1985 and the other in 2003, in which the Judiciary Committee considered judicial nominations that had received
negative blue slips from both home state Senators.
141 Of course, if a member of the Judiciary Committee, the Senator himself or herself may engage in this filibuster,
either alone or (ideally, from the Senator’s standpoint) with support from other members of the committee.
142 U.S. Congress, Senate Committee on the Judiciary, Rules of Procedure, accessed at http://judiciary.senate.gov/
about/committee-rules.cfm.
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chair of the committee interprets Rule IV as “providing the minority with a right not to have
debate terminated and not to be forced to a vote without at least one member of the minority
agreeing.”143 The Senator, however, will not succeed if the chair wishes to bring the nomination
to a vote and views the committee chair as having “the inherent power to bring a matter to a
vote.”144
If the Judiciary Committee votes to report the objected-to nomination, the home state Senator’s
opposition strategy then shifts to the Senate floor. At this point, the Senator, if so inclined, may
inform his or her party leader that the Senator wants to place a “hold” on the nomination. This
action would have the effect of preventing or delaying Senate action on the nomination, if the
majority leader honors the request for a hold. Alternately, the Senator may request the leader to
place a hold on another nomination or on an important Administration-backed bill, in order to
pressure the President to withdraw the objected-to nomination. The effectiveness of the hold is
grounded in the difficulty for the Senate, under its rules, of getting to a final vote on a nomination
if a single Senator objects. Such an objection, voiced on behalf of the home state Senator, would
indicate that a hold had been placed on the nomination145 and that the Senator placing the hold
might be prepared to filibuster the nomination.146 To end delay on the nomination and allow for
an eventual vote on it may require three-fifths of the entire Senate membership, or 60 of 100, to
vote in the affirmative under the cloture procedure of Senate Rule XXII.147
As long as the Senate majority leader honors the hold placed by the home state Senator, the
nomination will not receive floor consideration.148 (The Senator’s hold will prevent confirmation
if it succeeds in pressuring the President to withdraw the nomination or if it is honored by the
majority leader until an adjournment of the Senate for more than 30 days, at which point, under
Senate rules, the nomination may be returned to the President.) However, if the majority leader
decides to schedule action on the nomination, the Senator must decide whether to filibuster it (as
well as whether to enlist the support of other Senators in this effort). For their part, Senators
supporting the nomination, in response to a filibuster (or in anticipation of one), may file a cloture
petition (signed by 16 Members) to end debate. If three-fifths of the Senate’s membership votes in
favor of cloture, a maximum of 30 hours of additional debate on the nomination would remain.
After 30 hours, unless less time were used, the Senate would vote on whether to confirm.

143 Sen. Patrick J. Leahy, “Nomination of Miguel A. Estrada, of Virginia, to be United States Circuit Judge for the
District of Columbia Circuit,” remarks in the Senate, Congressional Record, vol. 149, March 13, 2003, p. 6185.
144 Sen. Orrin G. Hatch, “Nomination of Miguel A. Estrada, of Virginia, to be United States Circuit Judge for the
District of Columbia Circuit,” letter to Senate Democratic leader introduced into the Record during remarks in the
Senate, Congressional Record, vol. 149, March 3, 2003, p. 4954.
145 The Senator initially may place the hold with the party leader anonymously. However, if, in response to a motion,
the party leader or the leader’s designee objects explicitly on behalf of the Senator, the leader, under new Senate rules,
would apparently identify the Senator. For an analysis of the process by which Senators use holds to block or delay
Senate floor consideration of, or action on, a measure or matter, see CRS Report RL34255, Senate Policy on “Holds”:
Action in the 110th Congress
, by Walter J. Oleszek.
146 A filibuster-minded Senator would be one prepared to use extended debate and other delaying actions to prevent a
vote from occurring.
147 For analysis of Senate procedure and rules that govern efforts by Senators to end floor debate on nominations, see
CRS Report RL31948, Evolution of the Senate’s Role in the Nomination and Confirmation Process: A Brief History, by
Betsy Palmer (under heading “Filibuster”); and CRS Report RL32843, “Entrenchment” of Senate Procedure and the
“Nuclear Option” for Change: Possible Proceedings and Their Implications
, by Richard S. Beth.
148 “It is up to the majority leader to decide whether, or for how long, he will honor a colleague’s hold. Scheduling the
business of the Senate is the fundamental prerogative of the majority leader, and it is done in consultation with the
minority leader.” CRS Report 98-712, “Holds” in the Senate, by Walter J. Oleszek.
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The success of a Senator’s strategy to defeat the nomination by filibuster will be determined by
the Senate’s vote on any cloture motion that might be filed.149 If fewer than three-fifths of the
Senate’s Members vote to invoke cloture, the Senator (and other Senators voting against cloture)
will have succeeded in preventing a Senate vote on the nomination, at least at that time.
Option of Not Opposing the Nomination
Sometimes, a home state Senator might choose not to oppose a judicial nominee selected by the
President with little apparent regard for the views of the Senator during the nominee selection
process. Various considerations might influence the Senator to take this position.
One consideration for not opposing the nominee might be the desirability of filling the vacant
judgeship in question as promptly as possible. To successfully oppose the nomination in the
Judiciary Committee or the full Senate would compel the President to make a new nomination for
the judgeship at a later point in time. The Senator’s opposition, in other words, would prolong the
time in which the judgeship was vacant. Hence, a Senator, in some situations, might consider
filling the vacancy with a nominee in whom he or she found fault (or about whom the Senator had
been inadequately consulted) to be a “lesser evil” than prolonging the vacancy indefinitely by
successfully opposing the nominee in the Senate.
In some situations, another consideration for not opposing a nomination might be the nominee’s
qualifications for the judgeship—particularly if the nominee appeared highly qualified. This
consideration, it could be argued, might be a reason for a Senator not to oppose the nominee
unless the Senator thought his or her own candidate search would likely produce an even more
qualified nominee.
A Senator also might not wish to oppose a particular nomination if it might project to the public a
picture of the Senator as “obstructionist” or unduly antagonistic in relation to the Administration.
Particularly, under certain circumstances, opposing a President’s judicial nomination might be
seen as unduly negative. For instance, if the Senator’s objections to the nominee are purely
procedural in nature (in essence, that the Administration afforded the Senator little or no
opportunity to provide input prior to the candidate’s being nominated), the Senator might see the
merits of opposing the nominee on these grounds as outweighed if the Senator finds no fault with
the nominee and if the public is also likely to look favorably or sympathetically upon the
nominee.
Sometimes a consideration not to oppose a home state judicial nomination might be the likelihood
of more judicial vacancies arising in the Senator’s state in the near future. A Senator might see
these future vacancies as providing a better opportunity for exerting senatorial influence over
judicial appointments than is possible by opposing someone whom the President has already
nominated. Further, by not opposing a particular home state nomination, the Senator might be in a
position to gain goodwill with the Administration, from which the latter might well be moved to
afford the Senator a more enhanced role in the selection process for future home state judicial
nominees.

149 If an initial cloture motion is not agreed to, supporters of the nomination are not precluded from filing additional
cloture motions to limit debate and force a vote on the nomination.
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A final consideration for not actively opposing a judicial nominee is that this option would not
necessarily preclude the Senator from expressing criticisms of the current nominee or of the
process used in his or her selection. While refraining from opposing the nominee, the Senator
would be free to call on the Administration to “do better” with its next judicial nomination from
the Senator’s state. The Senator also could suggest ways of improving the consultative process
between the Senator and the Administration in the search for future lower court nominees, as well
as the kind of qualities that the Senator deemed important for the future nominees to possess. This
approach, it could be argued, would put the Administration on notice that public criticism of, and
possible opposition to, the next judicial nominee from that state could be expected, if more
attention were not paid in the future to the Senator’s views during the nominee selection process.
Current Issues and Concluding Observations
Wide Acceptance of Importance of Pre-Nomination Consultation
Home state Senators have long played an important role in providing advice to Presidents on
judicial appointments. Historically Presidents have generally been more receptive to such advice
when it has come from Senators of their own party rather than of the opposition party.
Nevertheless, presidential administrations have long recognized that pre-nomination consultation
with opposition party home state Senators also is important, serving, at the very least, as a means
to learn Senators’ views about potential nominees (and whether they would be likely to return
positive blue slips to the Judiciary Committee if certain candidates were nominated).
In recent decades, despite periodic controversies over judicial nominations, the idea that there
should be consultation on judicial appointments between an administration and home state
Senators, regardless of their party, appears to have gained widespread acceptance. As discussed
earlier, various chairs and other members of the Judiciary Committee, in correspondence with the
White House between 1989 and 2001, declared the importance of such consultation.150
Specifically, these letters expressed the expectation that the Administration engage in consultation
with home state Senators of both parties that is “in good faith” and “serious.” Senators, the letters
said, should not only provide feedback on judicial candidates under Administration consideration
but also have the opportunity to make their own candidate recommendations. The letters also
called for consultation to include a number of specified sequential steps, to keep Senators
informed and involved throughout the Administration’s judicial selection process. Recent
administrations have not publicly challenged these expectations; indeed, the White House counsel
to President George W. Bush, in a 2001 letter, indicated his general acceptance of them.151
More recently, on numerous occasions during the 110th Congress, Senator Leahy, chairman of the
Judiciary Committee, called on the Bush Administration to “work with” home state Senators—
including Senators of the opposition party—in the judicial selection process. Such consultation,

150 See more detailed discussion of these letters in above report section on “Blue Slip Policy of Senate Judiciary
Committee.”
151 Alberto R. Gonzales, counsel to the President, to Sen. Patrick J. Leahy and other Democratic members of Senate
Judiciary Committee, May 2, 2001. (Copy available from author.) Gonzales wrote to the Democratic Senators that “we
generally agree with your specific suggestions for keeping home state Senators informed and seeking their advice.” He
added that in “all cases, you may be certain that we will work hard to ensure that home state Senators will have a
suitable opportunity to express their views concerning possible nominees well in advance of nomination.”
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Senator Leahy maintained, would help identify judicial candidates acceptable to both the
Administration and the Senators and, conversely, avoid the selection of more controversial
nominees to whom the Senators would object.152
During the 111th Congress, Chairman Leahy in various Senate floor statements has praised
President Barack Obama for consulting with home state Senators prior to selecting lower court
nominees. In December 2009 floor remarks, he cited pending judicial nominations which had the
support of Republican home state Senators in seven different states. “These nominations,”
Senator Leahy said, were “just the most recent examples of this President reaching out to home
state Senators from both parties to consult before making nominations.”153 Subsequently, in a
September 2010 floor statement, President Obama’s consultations with home state Senators were
again mentioned by Senator Leahy. In his floor remarks, Senator Leahy criticized what he said
was a strategy by the opposition party in the Senate of holding up consideration, “for weeks and
months, of judicial nominees who have been reported unanimously from the Judiciary
Committee.” The difficulty in gaining unanimous consent of the Senate to consider these
nominations, Senator Leahy said, could not be blamed on the President’s failure to engage in pre-
nomination consultation with home state Senators. “It would be one thing,” Senator Leahy said,
“if he made nominations opposed by home state Senators. President Obama has not. Typically, he
has reached out. He has worked with home state Senators in both parties.”154
Recent Controversies over Administrations’ Consultation with
Senators

During the presidencies of William J. Clinton and George W. Bush, Senators, usually of the
opposition party, sometimes questioned the adequacy of Administration consultation with home
state Senators in the lower court selection process. In various instances, Senators, maintaining
they were not adequately consulted, or not consulted in good faith, concerning lower court
nominations in their states, declined to return positive blue slips to the Senate Judiciary
Committee, in effect blocking committee consideration of the nominations. Early in the
presidency of Barack Obama, opposition party Senators warned the President that they would
oppose any lower court nominees selected without prior Administration consultation of home
state Senators. Thus far during the 111th Congress, however, none of President Obama’s lower
court nominations has yet given rise to controversy over the adequacy of Administration
consultation with home state Senators. Stating a desire to avoid such controversy, an official has
said the Administration will seek out the views of Republican home state Senators before
selecting judicial nominees.

152 See, for instance, the opening statements of Sen. Leahy at committee hearings held on judicial nominations on July
19, 2007, accessed at http://www.leahy.senate.gov/press/200707/071907c.htm, and on December 18, 2007, accessed at
http://www.leahy.senate.gov/press/200712/121907f.html, as well as the Senate floor statement of Sen. Leahy on March
3, 2008, at “Judicial Nominations,” Congressional Record, daily edition, vol. 154, March 3, 2008, pp. S1460-S1462.
153 Sen. Patrick J. Leahy, “Judicial and Executive Nominations,” remarks in the Senate, Congressional Record, daily
edition, vol. 155, December 23, 2009, p. S13867.
154 Sen. Patrick J. Leahy, “Nomination of Jane Branstetter Stranch to be United States Circuit Judge for the Sixth
Circuit,” Congressional Record, daily edition, vol. 156, September 13, 2010, p. S7010.
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During the Clinton Presidency
In 1997, during the Clinton presidency, Senator Orrin G. Hatch (R-UT), then-chairman of the
Judiciary Committee, drew attention to questions that he said had been raised about the Clinton
Administration’s “level of consultation” with home state Senators on lower court appointments:
While we are on the subject of judicial nominations, I would like to respond to some of my
colleagues who have come to me to express their frustration that they have not received the
level of consultation that they have expected, and typically received, regarding nominees
from their states. It has long been the policy of the Senate, and of the Committee, that a fair,
efficient and cooperative confirmation process is best achieved when the Executive Branch
engages in genuine, good faith consultation with home state senators in the process of
determining whom to nominate for judicial positions.155
Several years later, Senator Hatch, who had been chairman of the Judiciary Committee during the
last six years of the Clinton Administration, explained what had happened to some of the judges
nominated by President Clinton who were not confirmed. “Seventeen of those,” Senator Hatch
said, “lacked home state support, which often resulted from the White House’s failure to consult
with home state senators. There was no way to confirm those nominations without completely
ignoring the senatorial courtesy we afford to home state Senators in the nomination process.”156
During the Bush Presidency
During the presidency of George W. Bush, Senators, mostly along party lines, periodically
debated whether the Administration adequately consulted with home state Senators before
President Bush selected his nominees. Democratic leaders in the Senate asserted that the Bush
Administration frequently had not consulted with, or heeded the advice of, their party’s home
state Senators before the President made judicial nominations. As a result of not receiving
senatorial input, or receiving but not heeding it, the President, they maintained, made unwise,
controversial nominations, provoking Democratic opposition in the Senate.157 Senate
Republicans, by contrast, defended the Bush Administration, portraying it as having regularly
consulted with Senators regarding judicial nominations in their states, while faulting opposition
party Senators for seeking, through the consultative process, the power to select whom the
President nominates, rather than solely making recommendations or expressing opinions about
candidates under presidential consideration.158

155 Sen. Orrin G. Hatch, “Statement of Sen. Orrin Hatch,” news release, April 17, 1997. (Copy available from author.)
156 Sen. Orrin G. Hatch, “Nomination of Miguel A. Estrada, of Virginia, to be United States Circuit Judge for the
District of Columbia Circuit,” Congressional Record, vol. 149, March 3, 2003, p. 4933.
157 In this vein, the ranking Democratic member on the Senate Judiciary Committee, at a June 17, 2004, executive
business meeting of the committee, noted that a controversial nominee to the U.S. Court of Appeals for the Sixth
Circuit about to be voted on by the committee was opposed by Michigan’s two Democratic Senators (who each
returned a negative blue slip to the committee). Both of these Senators had “attempted to work with the White House to
offer their advice, but their input was rejected.” Statement of Sen. Patrick J. Leahy, “Senate Judiciary Committee,
Executive Business Meeting, The Saad Nomination,” June 17, 2004. (Copy available from author.) Similarly, in a 2005
letter to the Senate Republican majority leader, the Senate Democratic leader maintained that “[o]ver the last four years
President Bush too often failed to seek the advice of the Senate before making unwise nominations, and Democrats
lacked any means short of a filibuster to carry out our duty under the Advise and Consent Clause of the Constitution.”
Sen. Harry Reid, Senate Democratic leader, letter to Sen. William Frist, Senate majority leader, May 10, 2005. (Copy
available from author.)
158 See, for instance, the remarks of Sen. Orrin G. Hatch (R-UT), then-chair of the Judiciary Committee, during Senate
(continued...)
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During two Congresses coinciding with the Bush presidency (the 108th and the 109th Congresses),
the President’s party, the Republicans, had majority control of the Senate. During the 108th
Congress, the blue slip policy of the Senate Judiciary Committee then in effect did not prevent
committee consideration of, or action on, five circuit court nominations that were ultimately
reported to the Senate in spite of opposition by Democratic home state Senators.159 In the Senate,
however, in the face of significant opposition from Democratic Members, none of the five
nominees received final confirmation votes160 (although three were subsequently confirmed,
during the 109th Congress).161 Also during the 108th Congress, long-running consultations
between the White House and one state’s Democratic Senators failed to reach an agreement over
whom from that state to nominate for circuit judgeships. The President was criticized by Senate
Democrats,162 but defended by Senate Republicans,163 for not agreeing to a proposal offered by
the two home state Senators as a compromise. Under their proposal, a bipartisan judicial
nomination commission would be established, with the President selecting circuit court nominees
from names recommended by the commission.

(...continued)
floor debate in 2003 on a circuit court nomination opposed by the majority of Senate Democrats, during which Sen.
Hatch said: “I think some of our colleagues on the other side want to choose these judges, and we are finding that
continuously in their arguments, that the administration does not ‘consult’ with them. If consultation means the
administration has to take whatever judges the Democrats desire, that is not consultation. Consultation is letting them
know what is on the mind of the President, and the administration discussing it with them, seeing if they have any real
objections to the choices of the President, asking them to weigh in and give the administration whatever information
they can, and then making the choice and going from there. That is consultation.” Sen. Orrin G. Hatch, “Nomination of
Miguel A. Estrada, of Virginia, to be United States Circuit Judge, for the District of Columbia Circuit,” Congressional
Record,
vol. 149, February 12, 2003, p. 3544.
159 Available on the website of the U.S. Department of Justice’s Office of Legal Policy are lists showing, for each
circuit and district court nomination in the 107th and 108th Congress, whether the home state Senators returned a blue
slip and whether the blue slip was “positive” or “negative.” (Comparable blue slip information is not available on the
website for the 109th and 110th Congresses.) See http://www.usdoj.gov/olp/blueslips/htm. During the 108th Congress,
the website shows, that “negative” blue slips were returned to the Judiciary Committee for the circuit court nominations
of Richard A. Griffin, David W. McKeague, Susan B. Neilson, and Henry S. Saad (all of Michigan) and that one home
state Senator declined to return a blue slip for the circuit court nomination of Carolyn B. Kuhl of California (with the
other Senator having “reserved judgment”). Notwithstanding the absence of positive blue slips from their home state
Senators, the five nominations all were considered and reported by the Senate Judiciary Committee. See Appendix 3 in
CRS Report RL31868, U.S. Circuit and District Court Nominations by President George W. Bush During the 107th-
109th Congresses
, by Denis Steven Rutkus, Maureen Bearden, and Kevin M. Scott.
160 In the case of four of the nominations, motions were made by Senate Republicans to close debate, but these motions
proved unsuccessful. The Senate (as discussed above) can close debate by passing a cloture motion, which requires a
super-majority of three-fifths of the Senate, or 60 Members, voting in favor. During the 108th Congress, there were 10
circuit nominations on which the Senate, on one or more occasions, voted not to close debate, including the
nominations of Carolyn B. Kuhl, Richard A. Griffin, David W. McKeague, and Henry S. Saad. The number of votes
cast to close debate on these four nominations, in each case, fell short of 60. No floor vote of any kind, procedural or on
whether to confirm, was cast by the Senate during the 108th Congress on the fifth nomination cited in the previous
footnote, Susan B. Neilson. See Appendix 3 in CRS Report RL31868, U.S. Circuit and District Court Nominations by
President George W. Bush During the 107th-109th Congresses
.
161 Of the five aforementioned nominees, the three who received Senate confirmation in the 109th Congress were
Richard A. Griffin, David W. McKeague, and Susan B. Neilson. See Appendix 1 in CRS Report RL31868, U.S. Circuit
and District Court Nominations by President George W. Bush During the 107th-109th Congresses.

162 See, for example, Sen. Debbie Stabenow, “Judicial Nominees,” remarks in the Senate, Congressional Record, vol.
149, July 16, 2003, p. 18212.
163 See, for example, Sen. Bill Frist, “Stalled Nominations for the Sixth Circuit,” remarks in the Senate, Congressional
Record
, vol. 149, July 16, 2003, pp. 18207-18211.
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During the 109th Congress, with Republicans again in the Senate majority (but with the Judiciary
Committee under a different chair), no instances were reported of district or circuit nominations
receiving committee action in the absence of favorable blue slips returned to the committee by
home state Senators. Senate Republicans and Democrats, however, clashed over other judicial
nominations and over the propriety of using filibusters on the Senate floor to prevent Senate votes
on those nominations.164 In May 2005, leaders of the Senate’s Republican majority announced
their intention, if Senate Democrats continued to seek to prevent confirmation votes on several
circuit court nominees, to change the chamber’s rules or precedents to require the vote of only a
simple Senate majority to end Senate debate on judicial nominations.165
A Senate confrontation over judicial filibusters was averted on May 23, 2005, when an agreement
was reached by a coalition of seven Democratic and seven Republican Senators. As part of the
agreement, the Senators in the coalition pledged not to lend their support to filibusters against
judicial nominations except under “extraordinary circumstances,” and not to support any change
in the Senate rules to bar filibusters against judicial nominations, as long as the “spirit and
continuing commitments made in this agreement” were kept by all of the Senators in the
coalition.166 As a result of this agreement, some, but not all, of the President’s most controversial
circuit court nominations, which previously had been blocked on the Senate floor, were
confirmed.167
The agreement, in the form of a “memorandum of understanding,” also called on the President to
consult with Senators, regardless of their party, on prospective judicial candidates. Specifically,
on this point, the memorandum stated,
We believe that, under Article II, Section 2, of the United States Constitution, the word
“Advice” speaks to consultation between the Senate and the President with regard to the use
of the President’s power to make nominations. We encourage the Executive branch of
government to consult with members of the Senate, both Democratic and Republican, prior
to submitting a judicial nomination for consideration.
Such a return to the early practices of our government may well serve to reduce the rancor
that unfortunately accompanies the advice and consent process of the Senate.168

164 See, for example, Carl Hulse, “Filibuster Fight Nears Showdown,” The New York Times, May 8, 2005, pp. 1,19;
Charles Babington, “Clash Over Judicial Filibusters Nears Boiling Point,” The Washington Post, May 9, 2005, p. A21;
and Bill Sammon and Charles Hurt, “Bush Raps Judicial Filibuster,” The Washington Times, May 10, 2005, p. A12.
165 Senate Republican leaders announced that their move to change Senate precedents to bar filibusters against judicial
nominations would occur in conjunction with their efforts to close floor debate on the nomination of Priscilla Owen to
be a U.S. circuit court of appeals judge. (An earlier nomination of Owen to the same judgeship, during the 108th
Congress, had been successfully filibustered four times by Senate Democrats.) Keith Perine and Daphne Retter,
“Judicial Showdown Starts with Owen,” CQ Today, vol. 41, May 18, 2005, pp. 1,32.
166 Charles Babington and Shailagh Murray, “A Last-Minute Deal on Judicial Nominations,” The Washington Post,
May 24, 2005, pp. A1, A4. See also CRS Report RS22208, The “Memorandum of Understanding”: A Senate
Compromise on Judicial Filibusters
, by Walter J. Oleszek; and CRS Report RL33094, Congress and the Courts:
Current Policy Issues
, by Walter J. Oleszek (under headings “The Bipartisan Agreement: A Memorandum of
Understanding” and “Diverse Definitions of ‘Extraordinary Circumstances’”).
167 Other controversial nominees received no further Senate action during the rest of the 109th Congress, and four of
them were not re-nominated in the 110th Congress. See David G. Savage and Henry Weinstein, “4 White Flags Fly in
Courts Fight; With the Senate in the Hands of Democrats, the Most Controversial of Bush’s Judicial Nominees Are
Withdrawn,” Los Angeles Times, January 10, 2007, p. A12.
168 Seth Stern, “Deconstructing the Senate’s Bipartisan Deal on Judicial Nominations,” CQ Today, vol. 41, May 25,
2005, p. 31. The full text of the memorandum of understanding can be found in the Congressional Record, daily
(continued...)
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Throughout most of the first Congress coinciding with his presidency (the 107th), President
Bush’s party was not the majority party in the Senate, and it was not the majority party in the
110th Congress. In the Judiciary Committee during the 107th Congress, five lower court nominees
opposed by home state Senators were among a larger number whose nominations did not advance
to the committee hearing stage.169 Likewise, under the blue slip policy in effect in the 110th
Congress, the Judiciary Committee did not consider or act on a judicial nomination in cases
where a home state Senator declined to return a positive blue slip.170 Further, the chairman of the
Judiciary Committee, on various occasions, criticized President Bush for failing to “work with”
Senators of several specified states in making judicial nominee selections for those states171 and
for selecting nominees who had not received support from their home state Senators in the form
of positive blue slips.172
In another instance during the 110th Congress, the President nominated someone to a circuit
judgeship who was not on the list of five candidates recommended jointly to the judgeship by the
two home state Senators, one a Republican and the other a Democrat. (The nominee, however,
had been on the list of candidates recommended by the Republican Senator earlier, in the 109th
Congress.) Immediately, upon announcement of the nomination, the two Senators criticized the
White House for ignoring their recommendations,173 with the Democratic Senator reportedly

(...continued)
edition, vol. 151, May 24, 2005, pp. S5830-S5831.
169 Blue slip information for the 107th Congress posted on the U.S. Department of Justice website has listed five circuit
court nominations and one district court nomination for which one or both home state Senators returned a negative blue
slip or declined to return a positive blue slip. These specifically were the circuit court nominations of Terrence W.
Boyle of North Carolina, Carolyn B. Kuhl of California, and David W. McKeague, Susan B. Neilson, and Henry W.
Saad, all of Michigan, and the district court nomination of James C. Dever III of North Carolina. See
http://www.usdoj.gov/olp/blueslips/htm. In the absence of positive blue slips from both home state Senators, none of
these five nominations was considered by the Judiciary Committee during the 107th Congress. See Appendices 2 and 4
in CRS Report RL31868, U.S. Circuit and District Court Nominations by President George W. Bush During the 107th-
109th Congresses
. The five were among 12 circuit court nominees and 15 district court nominees failing to be
confirmed who did not receive a hearing during the Congress, while 17 other circuit court and 83 other district court
nominees during the Congress did receive Senate confirmation. See Ibid., under the headings “President Bush’s Circuit
Court Nominations During Particular Congresses,” and “President Bush’s District Court Nominations During Particular
Congresses.” For analysis of the kind of opposition that President George W. Bush’s lower court nominations
encountered in the Senate during the 107th Congress, including use of the Judiciary Committee’s blue slip procedure to
prevent nominations from receiving committee consideration, see Jonathan Groner, “A Major Shift in the Battle for the
Bench,” Legal Times, vol. 25, November 11, 2005, p. 8.
170 See “Senators Can Veto Judicial Picks,” Grand Rapids Press, January 5, 2007, p. B6, reporting that “U.S. Sen.
Patrick Leahy, D-Vt., who chairs the Senate Judiciary Committee, said this week both senators from a state, regardless
of party affiliation, will have to concur with a nomination before his committee will consider it.” See also Keith Perine,
“As Judicial Battles Loom, Leahy Revives Senate ‘Blue Slip’ Tradition,” CQ Today, January 3, 2007, accessed at
http://www.cq.com.
171 See footnote 153.
172 On March 3, 2008, in a Senate floor statement, the chairman of the Judiciary Committee noted that of “the 11 circuit
nominations that have been pending before the Senate this year, 8 have not had the support of home State Senators.”
Sen. Patrick J. Leahy, “Judicial Nominations,” Congressional Record, daily edition, vol. 154, March 3, 2008, p. S1461.
See also Keith Perine, “No Easing of Bush’s Stance on Judicial Nominations,” CQ Weekly, vol. 65, November 5, 2007,
pp. 3315-3316. (Hereafter cited as Perine, “No Easing of Bush’s Stance.”)
173 Sen. John Warner (R-VA) was quoted as having told the White House that “I steadfastly remain committed to the
recommendations stated in my joint letter with Senator Webb.” Jerry Markon, “Bush’s Picks for Court Spur Criticism
by Warner, Webb,” The Washington Post, September 7, 2007, p. B5. Sen. Jim Webb (D-VA) declared that “despite our
good faith, bipartisan effort to accommodate the President, the recommendations that Senator Warner and I made have
been ignored. The White House talks about the spirit of bipartisanship, lamenting congressional obstructionism. The
White House cannot expect to complain about the confirmation of federal judges when they proceed to act in this
(continued...)
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stating there was “no way” he would return a positive blue slip to the committee needed for
Judiciary Committee consideration of the nomination.174 Eventually, the nominee, citing “press
reports” that he was unlikely to receive a hearing before the Judiciary Committee, requested that
President Bush withdraw his nomination.175 Ultimately, over the course of the 110th Congress,
lack of home state Senator support blocked at least six circuit court nominations and three district
nominations from being considered by the Judiciary Committee. In each instance, the
nominations lacked positive blue slips from both home state Senators, which were regarded by
the committee’s chairman as necessary for the nominations to move forward in committee.176
During the Obama Presidency
Most recently, early in the Obama presidency, the Senate’s Republican minority in the 111th
Congress underscored the importance of being consulted by the Administration, prior to
nomination, about persons under consideration for lower court appointments in their states. In a
March 2, 2009, letter to President Barack Obama, signed by all 41 of its Members, the Senate’s
Republican Conference cited “the principle of senatorial consultation,” which they said “allows

(...continued)
manner.” Sen. Jim Webb, “Webb Responds to White House’s Nomination of Duncan Getchell,” news release,
September 6, 2007, accessed at http://www.webb.senate.gov.
174 Peter Hardin, “Webb Has Pair of Fights on his Hands; He May Block Judge Pick and Will Push Again for More
Time Off for Troops,” Richmond Times Dispatch, September 13, 2007, p. B2.
175 Manu Raju, “Judicial Nominee Withdraws amid Democratic Criticism,” TheHill.com, January 18, 2008, accessed at
http://www.thehill.com. The nominee, Duncan Getchell of Virginia, had been nominated by President Bush to a
judgeship on the U.S. Court of Appeals for the Fourth Circuit. In a letter sent to the White House, Getchell said that
“recent press reports indicate ... that the Senate Democratic leadership will not allow a hearing [on the nomination] to
go forward.... ” Ibid.
176 Four of the nine nominations were withdrawn by the President during the Congress, and the other five were returned
to the President at the end of the Congress. The four withdrawn nominations (one district, three circuit) were of Mary
O. Donohue of New York to the Northern District of New York (withdrawn on September 6, 2007), E. Duncan
Getchell Jr. of Virginia to the Fourth Circuit (withdrawn on January 23, 2008), Stephen J. Murphy III of Michigan to
the Sixth Circuit (withdrawn on April 15, 2008), and Gene E.K. Pratter of Pennsylvania to the Third Circuit (withdrawn
on July 24, 2008). The five returned nominations (two district, three circuit—all returned on January 2, 2009) were of
James E. Rogan of California to the Central District of California, Lincoln D. Almond of Rhode Island to the District of
Rhode Island, Rod J. Rosenstein of Maryland to the Fourth Circuit, Shalom D. Stone of New Jersey to the Third
Circuit, and William E. Smith of Rhode Island to the First Circuit. For the dates on which these and all other district
and circuit court nominations during the 110th Congress were received in the Senate, as well as the dates of their final
disposition, see Tables 1 and 2 (for circuit court nominations and district court nominations, respectively) in CRS
Report RL33953, Nominations to Article III Lower Courts by President George W. Bush During the 110th Congress.
For news accounts of lack of home state Senator support for the above-noted circuit court nominations, see Perine, “No
Easing of Bush’s Stance”; John E. Mulligan, “Whitehouse Discounts Value of Court Nominee’s Hearing,” The
Providence Journal
, December 17, 2007, accessed at http://www.projo.com; Pedro Ruz Gutierrez and Carrie Levine,
“Stalemate over Judicial Nominations Dampens Bush Legacy,” Legal Times, March 14, 2008, accessed at
http://www.law.com; and Shannon P. Duffy, “Sources: Senators Agree on New Federal Judges Package,” Law.com,
July 2, 2008, accessed at http://www.law.com.
For news accounts of lack of home state Senator support for the above-noted district court nominations, see Jay
Jochnowitz, “Donohue Won’t Get Federal Judgeship; Ex-Lieutenant Governor’s Quest formally Ended by White
House Action,” The Times Union [Albany, NY], September 7, 2007, p. A3; Erica Werner, “Boxer Blocking Former
Rep. Rogan Nomination to Federal Judiciary,” Associated Press, November 30, 2007, accessed at
http://www.lexisnexis.com; David G. Savage, “Rogan May Be Denied Seat on Federal Bench,” Los Angeles Times,
December 4, 2007, p. A14; and Kathy Mulvaney, “Five Seeking Seats on Federal Courts,” Providence Journal-
Bulletin
, February 12, 2009, accessed at http://www.lexisnexis.com.
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individual senators to provide valuable insights into their constituents’ qualifications for federal
service. They then added,
We hope your Administration will consult with us as it considers possible nominations to the
federal courts from our states. Regretfully, if we are not consulted on, and approve of, a
nominee from our states, the Republican Conference will be unable to support moving
forward on that nominee.177
Also in their letter, the Republican Senators suggested to President Obama that, as a show of
bipartisanship, he renominate some of President Bush’s circuit court nominees who failed to be
confirmed in the 110th Congress.178 At that point, President Obama had yet to make any circuit or
district court nominations.
Since then, President Obama has nominated 89 persons to be lower federal court judges.179 None
of his nominees were former Bush nominees as recommended by the Republican Conference. At
the same time, no controversies appear to have arisen thus far over the adequacy of Obama
Administration consultation with Senators concerning judicial nominations in their states. Stating
a desire to avoid such controversies, an Administration official indicated that the Administration
would seek out the views of Republican home state Senators before selecting judicial nominees.
The statement of the unnamed Administration official came on March 17, 2009, coinciding with
President Obama’s first lower court nomination. The President that day selected Chief Judge
David Hamilton of the U.S. District Court for the Southern District of Indiana to serve on the
U.S. Court of Appeals for the Seventh Circuit. Press reports of the nomination drew attention to
the fact that it was supported by Indiana’s two Senators, one a Democrat and the other a
Republican, and that both, in consultation with the Obama Administration beforehand, had
recommended Judge Hamilton for the circuit judgeship.180 The unnamed official also reportedly
stated that the Obama Administration was “eager to put the confirmation wars behind us—to turn
the page and work with senators from both sides of the aisle to achieve at least a bipartisan
process.”181

177 Senate Republican Conference, letter to President Barack H. Obama, March 2, 2009. (Hereafter cited as Senate
Republican Conference, March 2, 2009, letter.) (Copy available from author.) See also “Republican Senators Insist on
Role in Judicial Picks, National Journal’s CongressDaily, March 3, 2009, and Manu Raju, “Republicans Warn Obama
on Judges,” Politico.com, March 2, 2009, both accessed at http://www.lexisnexis.com.
178 The Senators noted that in the beginning of his Administration, George W. Bush had nominated to the circuit courts
two of President Clinton’s previous judicial nominations. “It would help change the tone in Washington,” their letter
said, “if your Administration would take the same bipartisan step.” Senate Republican Conference, March 2, 2009,
letter.
179 Thus far in the 111th Congress, President Obama has nominated 24 persons to circuit court judgeships and 65
persons to district court judgeships. See Legislative Information System’s Executive Nominations database at
http://www.congress.gov/nomis/.
180 For example, one account reported that the Hamilton nomination “makes good on Mr. Obama’s campaign pledge
for home-state consultation, and the support of Indiana’s senators—Richard G. Lugar, a Republican, and Evan Bayh, a
Democrat—both of whom recommended Judge Hamilton for the post.” Christina Bellantoni and Stephen Dinan,
“Obama Names First Court Pick,” The Washington Times, March 18, 2009, p. A8. (Hereafter cited as Bellantoni and
Dinan, “Obama Names.”)
181 Josh Gerstein, “Bipartisan Aim for Judge Picks—For Now,” Politico.com, March 17, 2009, accessed at
http://www.lexisnexis.com. (Hereafter cited as Gerstein, “Bipartisan Aim.”) The official, another story reported, said
that the White House “is consulting with Republicans—members of the Judiciary Committee and home-state
senators—on future judicial nominations.” Bellantoni and Dinan, “Obama Names,” p. A8. See also Michael A.
Fletcher, “Obama Names Judge to Appeals Court,” Washington Post, March 18, 2009, p. A4, reporting that “the White
(continued...)
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Specific Issues Concerning the Recommending Role of Home State
Senators

In recent years, the role to be played by home state Senators in the selection process for lower
court judges has periodically been the subject of debate. Specific issues concerning the Senators’
recommending role have included the following:
What Constitutes “Good Faith” or “Serious” Consultation?
Various Judiciary Committee policy statements, discussed earlier, have prescribed specific
consultative steps between an administration and home state Senators as requisite elements in
consultation conducted seriously and in good faith. The statements, however, did not address how
seriously the Administration should consider the Senators’ judicial candidate recommendations or
their objections to other candidates under Administration consideration. In various controversies
over particular judicial nominations during the Bush presidency, Democratic home state Senators
asserted that the Bush Administration did not engage in good faith, serious consultation with them
during the judicial nominee selection process, an assertion denied by the Administration. The
Administration view, in these controversies, appeared to be that it engaged in good faith, serious
consultation with a home state Senator on judicial nominations if it considered the input of a
Senator, even if it ultimately made a decision (in the selection of a judicial nominee) contrary to
the Senator’s express wishes.
Thus far during the 111th Congress, public controversy has not yet arisen between the Obama
Administration and opposition party Senators over what constitutes good faith consultation. Upon
the announcement of President Obama’s first circuit court nomination, an official said it was
“trying to set a tone” and “to send a message that we’re going to spend time consulting in the
Senate. We are eager to put the confirmation wars behind us.”182 The implication, it can be
argued, was that, in order to put “the confirmation wars behind,” the Administration would, for its
part, enter into consultations with home state Senators with what it considered to be good faith.
Arguably in a similar tone, the Senate Republican Conference, in a letter to the President two
weeks earlier, had noted that the judicial appointment process had “become needlessly
acrimonious,” and added, “We would very much like to improve this process, and we know you
would as well.”183
Should Home State Senators Always Have the Opportunity to Provide Their
Opinion of a Judicial Candidate Before He or She Is Nominated?

Over the years, the stated practice of the Administration of George W. Bush was one of
welcoming home state Senators’ views about who should or should not be nominated to fill

(...continued)
House said it would sound out Senate Republicans on judicial appointments in an effort to ‘put the confirmation wars
behind us.’”
182 Margaret Talev and Marisa Taylor, “Obama Judicial Pick Will Test Pledge to End Confirmation Wars,” McClatchy
Newspapers
, March 17, 2009, accessed at http://www.lexisnexis.com
183 Senate Republican Conference, March 2, 2009, letter
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federal court judgeships in their states.184 The Administration, however, appeared not always to
have informed home state Senators, prior to announcing the selection of a nominee, of all
candidates under consideration or of the candidate finally chosen to be the nominee. For example,
in at least one such instance, a circuit court nominee allegedly was selected without prior
consultation with the home state Senators. A spokesperson for one of the Senators criticized the
President for acting in an “uncooperative unilateral manner,” which, he said, broke “sharply from
the cooperative process in which previous nominees were chosen.185
The stated practice of the current Obama Administration is to consult with home state Senators
concerning circuit and district court candidates under consideration, well before a nominee is
selected. Particularly for district court candidates, this consultation entails seeking
recommendations from home state Senators of the President’s party (or, if neither Senator is of
the President’s party, from other state officials of the President’s party); hence, these Senators, by
virtue of their recommending role, provide the Administration with opinions—in effect,
endorsements—of candidates well before the selection of a nominee.186 Opposition party
Senators, according to an Administration source, also are “afforded the opportunity to comment
on circuit and district court candidates in their state prior to nomination.”187
How Differently Should the Administration Treat the Input of Senators,
Depending on Their Party Affiliation?

Historically, as a general rule, Presidents, as already discussed, have been much more accepting
of judicial recommendations from Senators of their own party than from Senators of the
opposition party. When neither of a state’s Senators are of the President’s party, the
recommending role has traditionally been filled by another state official of the same party as the
President, such as the governor or the most senior U.S. Representative of the President’s party
from the state. If only one of the state’s Senators is of the President’s party, the role of providing
recommendations traditionally has belonged to that Senator alone, to the exclusion of any
significant consultative role for the opposition party Senator.
Many Presidents, however, have selected some lower court nominees from among candidates
recommended by opposition party Senators. An administration might make special
accommodations with opposition party Senators for reasons unique to the state in question—for
example, to be in keeping with an established practice in the state for its two Senators, regardless
of their party, to make recommendations to the President; to minimize potential conflict with

184 See, for example, in Goldman et al., “W. Bush Remaking the Judiciary,” p. 287, quoting Brett Kavanaugh, associate
White House counsel, early in the Bush presidency, as follows: “We consult with the home state senators on both
district court and courts of appeals and run by them, before an FBI background check, names of people who are under
consideration to get their reaction ahead of time, and that helps avoid problems down the road. We maintain
consultation logs, and I think there’s been extensive consultation.” See also the previously cited remarks, later in the
Bush presidency, of White House counsel Dabney Friedrich, quoted in Goldman et al, “W. Bush’s Judiciary: The First
Term Record,” p. 247.
185 Elana Schor and Manu Raju, “Dems Grapple with Appeals Nominee, High Court’s Future,” The Hill, vol. 14, July
19, 2007, p. 4. The nomination in question was that of Shalom Stone of New Jersey to the U.S. Court of Appeals for
the Third Circuit, which another news account reported “was made without input from the state’s [New Jersey’s] two
Democratic Senators. Lisa Brennan, “N.J. Republican Lawyer Nominated to Fill Alito Seat on 3rd Circuit,” New Jersey
Law Journal
, July 19, 2007, accessed at http://www.law.com.
186 Cassandra Butts, May 13, 2009, telephone conversation.
187 Jonathan Kravis, April 9, 2010, statement.
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particular Senators whose support for, or opposition to, the President’s judicial nominations,
might be regarded as of strategic importance for confirmation purposes; or to minimize the
chances of opposition party Senators using the Senate Judiciary Committee’s blue slip procedure
to block home state nominations in committee.
Early in the Obama presidency, as discussed earlier, a White House official reportedly said the
Administration would seek out the views of opposition party Senators before selecting judicial
nominees from their states. One news story quoted the Administration official as saying it was
“eager to put the confirmation wars behind us—to turn the page and work with senators from
both sides of the aisle to achieve at least a bipartisan process.”188 For its part, the Senate
Republican Conference, it will be recalled, has said its Members “will be unable to support
moving forward” on judicial nominees from their states “if we are not consulted on, and approve
of,” the nominees.189
Hence, as the Obama Administration considers judicial candidates from states with one or two
opposition party Senators, an issue that might arise is to what degree its reported pledge to “work
with” opposition party Senators should afford the Senators influence in nominee selection.
Should consultation generally be limited to seeking the Senators’ views of candidates
recommended from other sources? Or should the consultative role for these Senators be greater—
to include, for instance, an opportunity for them, early in the nominee selection process, to
recommend specific candidates or to inform the Administration of the types of criteria that they
believe should be used in selecting nominees? When both home state Senators are of the
opposition party, should the Administration, under some circumstances, select a judicial nominee
from among candidates recommended by the Senators, rather than from other sources?
When federal court vacancies arise in their states, opposition party Senators might often be
inclined to seek as large a consultative role in the judicial nominee selection process as
possible—in some cases perhaps approaching or equal to the role traditionally played by Senators
of the President’s party. An administration, however, might generally be expected to resist the
notion that the consultative role for opposition party Senators in judicial selection is on a par with
the role played by Senators of the President’s party. When neither of a state’s Senators is of the
President’s party, an administration might prefer to generate its own list of candidates for judicial
candidates. Or it might be concerned with respecting the traditional claims of state officials of the
President’s party, who predictably will assert that their prerogatives to recommend candidates for
judicial appointments supersede those of opposition party Senators. How an administration, in
judicial selection, resolves the competing claims of opposition party Senators with those of state
officials of the President’s party might vary, depending, among other things, on the state and the
extent to which the Administration believes it must make special accommodations with the
Senators in question.

188 Gerstein, “Bipartisan Aim.”
189 See earlier discussion, under the heading “During the Obama Presidency,” of the Senate Republican Conference’s
March 2, 2009, letter to President Obama.
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What Prerogatives Should Home State Senators Have in the Selection of
Circuit Court Nominees?

As already discussed,190 home state Senators of the President’s party by custom exert less
influence over the selection of circuit court nominees than of district court nominees. Such
Senators may, and frequently do, recommend circuit court candidates, but with the usual
understanding that the Administration will be considering other candidates as well—with the
distinct possibility of the President selecting a nominee from the latter group. Home state
Senators of the opposition party are also free to recommend candidates for circuit court
nominations (as they may for district court nominations). By custom, however, such
recommendations (in large part because they come from the Senators of the opposition party) are
ordinarily not at the top of the list among candidates under Administration consideration. (The
rare exceptions to this, where recommendations by an opposition party Senator are a major
consideration in the selection of circuit court nominees, have usually occurred when the
recommendations were made jointly with a Senator of the President’s party or in accord with the
recommendations of a bipartisan judicial nominee selection panel established in the Senators’
state.)
Throughout the presidency of George W. Bush, Administration sources indicated an openness to
receiving circuit nominee recommendations from home state Senators, without, however, being
under any obligation to follow the advice given. President Bush’s disinclination to cede selection
power to home state Senators of his party in the area of circuit court appointments seemed to be
borne out by various news media accounts in 2007, which reported on public disagreements
between the Bush Administration and a number of Republican Senators over whom to nominate
to fill certain circuit judgeships. A Washington Post story, reporting on these disagreements,
quoted “one conservative who is close to the nominating process” (and who would speak only on
the condition of anonymity) as saying, “There has been a long-standing practice in Republican
administrations that courts of appeals nominees are the president’s prerogative, period.”191
Controversy also arose periodically, throughout the Bush presidency, over how much influence
home state Senators of the opposition party should have on the President’s selection of circuit
court nominees. The controversies usually occurred when President Bush selected nominees who
were objectionable to the Senators, doing so apparently uninfluenced by the Senators’ pre-
selection input aimed at dissuading him from making these choices. Rather than “working with”
the home state Senators to select nominees who would be acceptable to both sides, the President,
his Senate critics alleged, selected nominees without regard to the Senators’ nominee preferences
or concerns.192

190 See earlier section of this report under the heading “Lesser Role for Senators When Recommending Circuit Court
Candidates.”
191 The article also reported that “[s]ome conservatives privately say that the Republican senators are overstepping their
responsibility, which traditionally gives them a much larger role in district courts than in the appellate courts.” Robert
Barnes and Michael Abramowitz, “Conservatives Worry about Court Vacancies,” The Washington Post, June 10, 2007,
p. A4.
192 The Bush Administration never publicly stated, as a matter of general policy, what it regarded as the proper degree
of influence for opposition party home state Senators to have on the selection of circuit court nominees, or to what
degree the President should accommodate opposition party Senators in these selections. However, if it had chosen to do
so, the Administration arguably could defend decisions by the President to make circuit nominee selections against the
advice of opposition party Senators on at least these two grounds: First, it could be argued, if the President typically
(continued...)
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Thus far during the presidency of Barack Obama, the prerogatives of home state Senators in
recommending candidates for circuit court judgeships have yet to become an issue. An
Administration source in April 2010 noted that of 18 persons nominated up to then by President
Obama for circuit judgeships, at least 6 were initially recommended for the President’s
consideration by home state Senators.193 At the same time, as discussed earlier, the position of
President Obama, in the words of an Administration source, is that he “retains the prerogative” to
select circuit court nominees on his own, distinct from persons whom home state Senators might
recommend.194
Should the Policy of the Judiciary Committee Allow a Home State Senator to
Block Committee Consideration of a Judicial Nominee?

Throughout the presidency of George W. Bush, the Judiciary Committee’s blue slip policy often
was at the center of Senate debate over judicial nominations. In this debate, Senators differed on
how much control over lower court nominations the policy should confer on a home state
Senators—and, specifically, on whether a Senator’s failure to return a favorable blue slip for a
district or circuit court nomination should block the Judiciary Committee from considering the
nomination. This issue was particularly relevant in the 110th Congress, when six circuit court
nominations and three district court nominations lacking positive blue slips from both home state
Senators failed to receive hearings or votes by the Senate Judiciary committee.195
In the 111th Congress, the Judiciary Committee’s blue slip policy will again be a key factor in
determining whether a judicial nomination lacking the support of both home state Senators
receives committee consideration. Early in the Congress, with the White House newly occupied
by a Democrat, the Senate Republican Conference urged that the blue slip policy continue to be
applied as it had been in the previous Congress, when the President was a Republican.196 Under
that policy, as discussed above, the absence of a favorable blue slip from a home state Senator
prevented a lower court nomination from receiving a committee hearing or other committee
action.
In the current Congress, the power to decide how the blue slip policy is to be applied again rests
with Senator Leahy, the committee’s chair. In September 2010 floor remarks, Senator Leahy
indicated that support of both home state Senators, regardless of their party, was a prerequisite for

(...continued)
does not give primary consideration to the circuit court recommendations from home state Senators of his own party,
why should he do so for home state Senators of the other party? Second, it arguably is appropriate, given the
importance of the rulings of the circuit courts (in setting precedents that are binding on all the district courts within
their circuits), that a President be concerned with selecting circuit court nominees who have a judicial philosophy that
is compatible with his own. From the President’s standpoint, opposition party Senators, who have frequently been in
public conflict with his Administration over the criteria to use in selecting judicial nominees, cannot realistically be
regarded as providing the most suitable circuit candidate recommendations for the President to consider.
193 Jonathan Kravis, April 9, 2010, statement.
194 Cassandra Butts, May 13, 2009, telephone conversation.
195 These were the nine nominations discussed in footnote 176.
196 In a letter to the President Obama concerning the judicial appointment process, the Republican Senators stated their
opposition to changing the Judiciary Committee’s “practice of observing senatorial courtesy,” adding “we, as a
Conference, expect it to be observed, even-handedly and regardless of party affiliation.” Senate Republican
Conference, March 2, 2009, letter.
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a lower court nomination to be considered by the Judiciary Committee. In those remarks, Senator
Leahy praised President Obama, in selecting judicial nominees, for having “worked with home
State Senators in both parties.” Likewise, he said, “I have respected the minority. I have not
brought up people who did not have the support of their Republican home State Senators.”197
Should the Judiciary Committee and the Senate, as a Matter of Courtesy to
Colleagues, Approve Judicial Nominees Supported by Home State Senators?

In recent Congresses, Senate supporters of judicial nominations which have encountered
difficulties either in committee or on the Senate floor, in making a case in favor of confirmation,
often have pointed, among other things, to the fact that the nominations enjoyed home state
Senator support. Sometimes, they also have suggested that the Judiciary Committee and the
Senate should consider and approve the nominations, as a courtesy or in deference to their
colleagues, the home state Senators.
In the 110th Congress, for instance, Senate Republicans, then in the minority, drew attention to the
fact that three of President George W. Bush’s circuit court nominations (all nominated to the
Fourth Circuit) had not received consideration by the Judiciary Committee, despite having, in
each case, the support of both home state Senators.198 (Ultimately, at the end of the Congress, the
three nominations were returned to the President, without having received hearings.) Senator
Mitch McConnell of Kentucky, the Republican leader, and Senator Arlen Specter of
Pennsylvania, ranking member on the Judiciary Committee, discussed two of these nominees in
an April 2008 letter to the Senate majority leader and the chair of the Judiciary Committee. Both
nominees, their letter said, were “ready for hearings,” had “been waiting for many months,” and
“enjoyed strong home-state support from their Senate delegations,” all of whom were Republican
Members. Senators McConnell and Specter said the committee appeared “to view the support of
Republican senators as a necessary, but insufficient, condition for their constituent nominees.”
They urged that the committee instead regard the support of the home state Senators in question
to be as “dispositive” as the support given by a Democratic home state Senator to a judicial
nominee.199
In the 111th Congress, the issue again was raised, but this time not only regarding how much
deference the Judiciary Committee, but also the Senate as a whole, should to give to home state
Senator support of judicial nominations. The issue was particularly underscored during Senate
floor debate on July 29, 2010, when Senate Democrats, in the majority (as they were in the
previous Congress), made six different unanimous consent requests for the Senate to consider
specific judicial nominations (involving 6 circuit and 14 district court nominees). 200All of the UC

197 Sen. Patrick J. Leahy, “Nomination of Jane Branstetter Stranch to be United States Circuit Judge for the Sixth
Circuit,” remarks in the Senate, Congressional Record, daily edition, vol.156, September 13, 2010, p. S7009.
198 The circuit court nominations in question were those of Glen E. Conrad of Virginia, Robert J. Conrad Jr. of North
Carolina, and Steve A Matthews of North Carolina. For remarks of the Senate Republican Leader discussing both
Conrad nominations, see Sen. Mitch McConnell, “Nominations,” Congressional Record, daily edition, vol. 154, July
17, 2008, pp. S6909-S6910. For a letter by the Republican Leader and the Ranking Member of the Judiciary Committee
discussing the Robert Conrad and Matthews nominations, see “Judicial Confirmations,” Congressional Record, daily
edition, vol. 154, May 22, 2008, p. S4770.
199 April 29, 2008, letter of Sens. Mitch McConnell and Arlen Specter to Sens. Harry Reid and Patrick J. Leahy, in
“Judicial Confirmations,” Congressional Record, daily edition, vol. 154, May 22, 2008, p. S4770.
200 “Judicial Nominations,” Congressional Record, daily edition, vol. 156, July 29, 2010, pp. S6476-S6486.
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requests were objected to by the ranking member on the Judiciary Committee, Senator Jeff
Sessions (R-AL).201 In remarks preceding the UC requests, Senator Sheldon Whitehouse (D-RI)
observed that four district court nominations included in the requests had been approved by the
Judiciary Committee by party-line votes, and a fifth district court nomination, from the Senator’s
state of Rhode Island, had been reported out by a vote of 13-6 (with one Republican Senator
joining the 12 Democrats voting to favorably report). All five district court nominees, Senator
Whitehouse noted, had the support of both of their home state Senators. “Why,” the Senator
asked, “have we departed from the longstanding tradition of respect [for] the views of home State
Senators who know the nominees best and who best understand their home districts?” Moments
later, he urged “colleagues on the other side to reconsider what I think is a terrible mistake, which
is to allow out-of-State special interests to prevail over the considered judgment of home State
Senators when they agree on the best qualified nominee for district court in their home State.”202
A week later on the Senate floor, just before the Senate adjourned for a five-week summer recess,
Senator Whitehouse again spoke in favor of the chamber deferring to a state’s Senators who
support the confirmation of a district court nominee from that state.
It is also my understanding there has been a tradition in this body that while circuit court
nominees are considered what one might call, for better or worse, political fair game, there
has been a tradition of courtesy and comity regarding district court judges who sit in the
Senator’s home State when both of the home State Senators have agreed to and accepted the
President’s recommendations and supported it, given their blue slip to the committee, and so
forth.203
Should Home State Senators Use Commissions to Aid Them in Selecting
Judicial Candidates to Recommend to the President?

The American Bar Association, at its annual meeting in August 2008, adopted a resolution aimed
at making the appointment process for lower court judges less contentious and less time-
consuming. A key provision in the resolution was a proposal that bipartisan commissions be used

201 Ibid., pp. S6484-S6486. At one point, however, while explaining his objections, Senator Sessions stated that
“[c]ertain nominees are going to be moved forward.” Ibid. p. S6485. This, in fact, occurred soon thereafter: On August
5, 2010, just before adjourning for a five-week summer recess, the Senate by unanimous consent confirmed one circuit
court and three district court nominees, returned five relatively controversial judicial nominations to the President,
allowed the remaining judicial nominations on the Senate’s executive calendar to stay pending, in “status quo,” over
the recess, and scheduled the consideration of a circuit court nomination to be its first order of business upon
reconvening on September 13, 2010. See Congressional Record, daily edition, vol. 156, August 5, 2010, p. S6971.
202 Sen. Sheldon Whitehouse, “Judicial Nominations,” remarks in the Senate, Congressional Record, daily edition, vol.
156, July 29, 2010, p. S6480.
203 Sen. Sheldon Whitehouse, “Unanimous Consent Request—Executive Calendar,” remarks in the Senate,
Congressional Record, daily edition, vol. 156, August 5, 2010, p. S6971. Senator Whitehouse also stated he would have
liked, at that moment, to seek unanimous consent to keep on the Senate Executive Calendar two district court
nominations that were supported by home state Senators—rather than see them returned to the President under the
Senate’s rules because the Senate was about to begin a recess of more than 30 days. He noted, however, that no
Senators of the other party were present on the floor to respond to a UC request. Therefore, he said he would not make
the request out of respect for “the tradition that one does not propound unanimous consent requests without a member
of the minority party present to object or otherwise respond.…” Ibid., p. S6972. The two district court nominations in
question had been specifically excluded in a UC request agreed to by the Senate earlier in the day that allowed various
other nominations to remain in “status quo” on the Executive Calendar over the 30-plus-day recess. See Ibid., p. S6971
(“Unanimous Consent Request—Nominations”); hence, when the Senate adjourned for the recess, the two nominations
were returned to the President.
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to identify candidates for nomination to lower federal judgeships. Specifically, the ABA
encouraged that each state’s two U.S. Senators jointly appoint a bipartisan commission of lawyers
and other leaders to evaluate candidates for U.S. district judgeships in the state and recommend
which candidates the Senators should suggest for the President’s consideration. The ABA
resolution, as well, proposed the use of bipartisan commissions to consider and recommend
prospective nominees to the U.S. circuit courts; while the resolution did not specify who would
appoint these commissions, clarification on this point appeared to come from an ABA Journal
news account, which stated that, according to the resolution, bipartisan commissions should be
used by the President to help fill circuit court vacancies. The resolution recommended that the
President “consult with Senate leaders of both parties and the home state senators in advance of
submitting nominations,” and it urged the President and the Senate “to promptly fill judicial
vacancies and act expeditiously, especially with respect to nominees recommended by bipartisan
commissions.”204
Adoption of the resolution had been urged by the ABA’s Standing Committee on Federal Judicial
Improvements. In a report to the ABA convention, the committee suggested that use of bipartisan
commissions, by instilling a greater degree of bipartisanship in the selection of nominees, could
make the judicial confirmation process in the Senate less polarized, contentious and drawn out.
The committee maintained that “the nomination and confirmation processes for district and more
so for circuit judges have become problematic.” For the last several presidential administrations,
the report said, “the time to get nominations to the Senate has lengthened and the time from
nomination to confirmation has grown considerably. Moreover, the level of vitriol in the process
appears to have increased.” The report accepted as a given that “some degree of contentiousness
inheres in the process of selecting judges.” However, it suggested that such contentiousness often
“crosses the line into polarized combat that fosters the view that judges are in office simply to
carry out ideological agendas of those involved in putting them there, and makes some who could
be excellent judges unwilling to subject themselves and their families to acrimony and their
professional lives to a state of extended suspension.”205
The ABA committee report said that commissions established to suggest potential judges for
appointments in state courts had, “by most accounts, improved the judicial selection process in
the states.” It noted that for federal judicial nominations, Senators in eight states “now use
commissions of lawyers and others to screen potential district judge nominees.” The committee
urged that the two U.S. Senators in every state
jointly appoint truly bipartisan commissions of lawyers and non-lawyers to develop lists of
potential district judge nominees for the consideration of the senators and the White House.
When a state’s senators are of the same political party, it may be appropriate to share the
appointing authority with legislators and others in the state of the opposite party. 206

204 Edward A. Adams, “ABA Proposes Bipartisan Selection Process,” ABA Journal Law News Now, August 11, 2008,
accessed at http://www.abajournal.com/news/aba_proposes_bipartisan_judicial_selection_process/ (with hyper-text
link to the resolution in question—“Resolution 118”).
205 Standing Committee on Federal Judicial Improvements, American Bar Association, Recommendation and Report to
ABA’s 2008 Annual Meeting, August 2008, accessed at http://www.abanet.org/scfji/pdf/OneHundredEighteen.pdf.
206 Ibid. The committee also urged that “the lawyers on the commissions reflect, as much as possible, the various
elements and specializations within the bar and that overall commission membership reflect the diversity in the
population of the state or part of the state served by the judicial district.”
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The ABA’s August 2008 resolution has thus far failed to generate debate in Congress about the
merits of using bipartisan commissions to recommend candidates for U.S. district or circuit court
judgeships. Some news media organizations, however, reacted quickly to the resolution.
Providing a negative assessment, the Wall Street Journal, in an editorial, maintained that the ABA
proposal would diminish the President’s constitutional power to select judicial nominees, by
limiting his choice to “preapproved lists” of candidates provided by home state Senators and
bipartisan commissions. Further, it said, “merit selection merely takes the partisan politics out of
the public eye and into backrooms stocked with political insiders.”207 By contrast, a Los Angeles
Times
editorial asserted that
adoption of the ABA proposal would improve the quality of the federal judiciary without
infringing on the constitutional prerogatives of the president or the Senate. It even could lead
to a truce in the tiresome partisan tit-for-tat in the Senate that has blocked the confirmation of
qualified and moderate judicial nominees, a development the next president should welcome,
regardless of who he is.208
Following the November 2008 national elections, the president of the ABA, in an interview,
stated that ABA representatives, in visits to Capitol Hill, were advocating that Senators establish
bipartisan judicial commissions to aid them in screening candidates for district court judgeships.
He noted that the ABA also was “asking the new President to consider setting up a parallel system
for federal appellate court nominees.” He added that if the White House let it be known that the
President-elect “will more favorably consider someone who came up through the commission
process, then perhaps more of the Senators would agree to set up these bipartisan judicial
nominating commissions.”209
The Obama Administration thus far has not established any commission-like entities to aid it in
identifying or evaluating circuit court candidates. As of September 2010, however, nominating
commissions reportedly were being used in 18 states by one or both Senators to screen candidates
for federal court vacancies—up from 8 states in which such commissions were said to be in use in
August 2008.210 In 2 of the 18 states, the commissions reportedly were tasked with

207 “The ABA Plots a Judicial Coup,” Wall Street Journal, August 14, 2008, p. A12.
208 “Ruling on Judges,” Los Angeles Times, August 24, 2008, p. A31.
209 “An Interview with ABA President H. Thomas Wells Jr.,” The Third Branch, vol. 40, November 2008, pp. 10-11,
accessible at http://www.uscourts.gov/ttb/2008-11/.
210 In September 2010, the website of the American Judicature Society listed one or both Senators in the following 18
states—California, Colorado, Connecticut, Florida, Georgia, Hawaii, Illinois, Massachusetts, Michigan, Minnesota,
North Carolina, Ohio, Oregon, Pennsylvania, Texas, Vermont, Washington, and Wisconsin—as using nominating
commissions to screen candidates for federal court vacancies. The American Judicature Society, “Federal Judicial
Selection,” accessed at http://www.judicialselection.us/federal_judicial_selection/
federal_judicial_nominating_commissions.cfm?state=FD. This website link provides, for each of the 50 states and the
District of Columbia, specific information on the nature of any commission, or similar screening mechanism, currently
constituted to evaluate candidates for federal judgeships.
A recent study, noting “an upsurge” in home state Senators’ use of judicial nominating commissions, said the “reasons
for the upsurge are unclear.” The study noted that the Obama Administration had made no public call for their use and
speculated that Senators “may have been responding” to the ABA’s 2008 resolution urging them to appoint bipartisan
commissions in each state to recommend candidates for district court judgeships. The study observed, as another
possible explanation for increased senatorial use of commissions, that some Senators had emphasized that their
commissions also would screen U.S. attorney candidates, “perhaps reacting to the controversy over U.S. attorney
hirings and firings in 2006 and 2007.” Governance Institute, Options for Federal Judicial Screening Committees, p. 2.
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recommending not only candidates for district court judgeships but also for circuit court
judgeships historically associated with their states.211
Consultation Between the President and Home State Senators in
the Current Environment

In Senate controversies over lower court nominations in recent years, a central question often has
been whether an administration adequately consulted home state Senators during the nominee
selection process. Usually, the question has concerned the degree to which opposition party
Senators should play a role in advising the President on judicial nominee selections in their state.
Against this backdrop, both the Obama Administration and the Senate opposition party in the
111th Congress, as already noted, expressed, early in the Congress, the desire that the judicial
confirmation process be less acrimonious. Both also advocated, as a key to that objective,
increased consultation in the nominee selection process between the Administration and home
state Senators, regardless of their party. Nonetheless, subsequently in the 111th Congress, lower
court nominations frequently have proven to be a subject of partisan contention in the Senate. The
focal point of contention, however, has rarely, if ever, been whether the Administration
adequately consulted with home state Senators. Instead, contention has arisen, among other
things, over requests for unanimous consent in the Senate to consider particular nominations,212
over whether the Senate has processed a sufficient number of President Obama’s nominations
(and if not, why not),213 over whether or when to schedule and fit in floor consideration of judicial

211 Ibid, which states that a commission established in Hawaii makes recommendations for filling vacancies not only on
that state’s U.S. district court but also on the U.S. Court of Appeals for the Ninth Circuit “that are appropriately
considered Hawaii seats,” and that a commission in Wisconsin recommends candidates to fill vacancies not only on the
state’s U.S. district courts but also on the U.S. Court of Appeals for the Seventh Circuit “that are appropriately
considered Wisconsin seats.”
212 See, for example, Senate floor debate, in connection with requests for unanimous consent to consider several
judicial nominations, and objections raised to those requests, in “Judicial Nominations,” Congressional Record, daily
edition, vol. 156, July 29, 2010, pp. S6476-S6486.
213 The Senate, by the end of September 2010 (when it adjourned for a six-week recess), had confirmed less than half of
President Obama’s lower court nominees—specifically, l1 of his 24 circuit court nominees, and 30 of his 65 district
court nominees. Senate Democrats, at various points in the 111th Congress, blamed the Senate’s lack of action on
judicial nominations on what they said were delaying tactics at the chamber level on the part of their Republican
counterparts. See, for example, Sen. Patrick J. Leahy, “Judicial Nominations,” remarks in the Senate, Congressional
Record
, daily edition, vol. 156, July 22, 2010, pp. S61930-S6195; Sen. Patrick J. Leahy, “Nomination of Jane
Branstetter Stranch to be United States Circuit Judge for the Sixth Circuit,” remarks in the Senate, Congressional
Record
, daily edition, vol. 156, September 13, 2010, pp. S7009-S7011. Senate Republicans, for their part, denied
charges of obstructionism and maintained Senate Democrats had subjected President Bush’s judicial nominations to
longer delays than President Obama’s were now experiencing. See, for example, Sen. Jeff Sessions, “Judicial
Nominations,” Congressional Record, daily edition, vol. 155, December 23, 2009, pp. S13878-S13879; Sen. Jeff
Sessions, “Judicial Nominations,” remarks in the Senate, Congressional Record, daily edition, vol. 156, September 22,
2010, pp. S7314-S7317.
A recent journalistic account of the partisan controversy over why less than half of President Obama’s judicial
nominees have been confirmed reported that Senate Democrats “blame Republicans for slow-walking Obama’s
nominees by forcing cloture votes that require long stretches of floor time, even for judges who have ultimately been
confirmed with overwhelmingly bipartisan votes.” Senate Republicans, the account continued, said the President “is to
blame because he has been so slow in deciding how he wants to fill the vacancies. They also maintain that Democratic
leaders could get almost all of the president’s picks confirmed easily, given their 59-seat majority, if they chose to
make it a priority.” Seth Stern, “Bench-Clearing Brawl Continues,” CQ Weekly, vol. 68, September 27, 2010, pp. 2213.
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nominees (in light of other issues competing for the Senate’s attention),214 and over the
qualifications of certain nominees to serve as federal judges.215
As noted earlier, various policy statements by past chairs of the Senate Judiciary Committee have
listed various specific consultative steps which, at the time, the chairs regarded as requisite
elements in consultation between an administration and home state Senators concerning the
selection of lower court nominees. Although not binding on the Administration then or now, such
statements can be seen as helping to identify points during the consultative process when Senators
and the current Administration might make a point of contacting each other before a nominee is
actually selected.
Experience in recent Congresses, however, suggests that reaching agreement on the choice of a
nominee might not always be possible. It especially might be difficult when a presidential
administration and a home state Senator differ over the criteria to use in selecting judicial
nominees or over the policy goals to be served by judicial appointments, or when there are sharp
partisan differences between the President and the opposition party in the Senate over judicial
appointments. In such circumstances, however, the consultative process might sometimes present
an opportunity for the Administration and home state Senator to resolve their differences. The
process, for instance, might be an opportunity for the Administration to address, and seek to ease,
concerns a home state Senator might have about a judicial candidate. Alternately, during
consultation with the Administration, the Senator’s input might, in particular circumstances,
increase the chances for the selection of a “compromise” nominee, or one less objectionable to
the Senator than a candidate under earlier consideration by the Administration.
For any given Senator, the actual consultative process that takes place between the Senator (or his
or her staff) and the Administration will be unique to the situation at hand. For the particular
judicial candidate search in question, there will be such unique elements as the extent and nature
of input that the Senator conveys, whether he or she recommends specific candidates (and if so,
the comparative strengths of the Senator’s candidates vis-à-vis others the Administration might be
considering), the predisposition of the Administration to the Senator’s input, and a host other
political factors that the Administration might have to take into account (including its own policy
preferences for judicial nominees).
A President, experience has shown, sometimes nominates a judicial candidate other than one
favored by a home state Senator, often, by custom, doing so when the home state Senator is of the
opposition party. Whether the President, when making such a choice, has shown due respect for
the advisory part of the Senator’s advice and consent role will be a personal question for the
Senator to answer—but one also of likely interest to other Senators concerned about the nature of
their advice and consent prerogatives as home state Senators. Of key relevance to the question
will be the extent to which the Administration consulted with the Senator or the Senator’s staff,
and whether it did so with an apparent openness to the Senator’s views.


214 See, for example, Jessica Brady, “Long Wait Persists for Judicial Hopefuls,” Roll Call, vol. 56, September 13, 2010,
pp. 3&19.
215 See, for example, David Ingram, “GOP Hammers 2nd Circuit Nominee on Death Penalty Case,” The National Law
Journal
, April 29, 2010, accessed at http://www.law.com; David Ingram, “Despite Opposition, Liu’s 9th Circuit
Nomination Heads to Full Senate,” The National Law Journal, May 14, 2010, accessed at http://www.law.com.
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Author Contact Information

Denis Steven Rutkus

Specialist on the Federal Judiciary
drutkus@crs.loc.gov, 7-7162


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