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My friend Rachel Brand has this interesting (and short) article on the judicial nominations process — and the role of home state Senators — in the current issue of the Harvard Journal of Law & Public Policy.

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    8 Comments

    1. ruuffles says:

      Interesting. I did not know a president could kill a nomination even after the senate confirms.

      February 19, 2010, 4:55 pm

    2. p.d. says:

      This question might be obtuse, but what direct benefits do states draw from being well-represented, so to speak, on their respective circuit courts of appeal? I understand there’s an element of self-interest among state bars who would love to see their most prominent members be elegible for promotion, but is the underlying assumption that circuit judges will “look out for their own” when a case might have strong ramifications for their home state and potentially skew the outcome in its favor?

      February 19, 2010, 5:18 pm

    3. Anon321 says:

      I assume that senators want to maximize the number of home-state seats simply because it increases their power and creates more opportunities to obtain benefits for themselves and for their constituents. In light of the blue-slip process, the more judges there are from your state, the more often the President needs your explicit approval, which you can grant or withhold on the basis of other considerations.

      February 19, 2010, 5:53 pm

    4. SuperSkeptic says:

      Interesting and informative. While the “blue-slips” of “home” state Senators may well hold a modest degree of customary sway, the real power clearly lies with the Chairman of the Judiciary Committee.

      February 19, 2010, 5:54 pm

    5. Dave N. says:

      From the article:

      Occasionally, the course of historical events has created a dispute between two states as to which state “owns” a particular seat, putting the White House in an awkward situation. One recent example has kept a judgeship on the Ninth Circuit vacant for several years. In 2004, Judge Trott of the Ninth Circuit took senior status, leaving a vacancy for the President to fill. Judge Trott originally hailed from California, though he was working at the Justice Department in Washington, D.C., at the time of his nomination. President Reagan appointed him in 1988 to fill a seat that was understood at the time to “belong” to California. But upon his appointment, Judge Trott moved from Washington, D.C., to Idaho and set up his chambers there. Since Idaho is also in the Ninth Circuit, nothing legally prevented him from doing this. But upon his retirement, it created a standoff between the senators from California and Idaho as to which state was entitled to the judgeship. This conflict was never resolved during the Bush Administration, and Judge Trott’s seat remains unfilled five years later.

      I have commented on this episode in the past. Senator Feinstein placed a hold on N. Randy Smith solely because she thought Trott’s seat “belonged” to California.

      When Judge Thomas Nelson of Idaho took senior status, President Bush withdrew Smith’s appointment for the Trott seat and nominated him for the Nelson seat — and Smith was unanimously confirmed.

      As the Rachel Brand indicates, Judge Trott’s seat is still vacant with no nomination pending.

      February 19, 2010, 7:01 pm

    6. byomtov says:

      Interesting. I did not know a president could kill a nomination even after the senate confirms.

      That would be a bummer, wouldn’t it?

      “Sorry, Joe. I was just kidding. Better call the movers and cancel.”

      February 19, 2010, 7:01 pm

    7. CA5 watcher says:

      There may be a similar issue brewing on the 5th Circuit, where Judge Rhesa Barksdale of Mississippi took senior status last August. For about a year and a half, since Leslie Southwick was confirmed, Mississippi had 3 active 5th Circuit judges, but for at least 15 years before that, there had only been two, as there are again now. Judge Southwick’s seat had been briefly filled by the recess-appointed Charles Pickering, and sat empty for quite awhile before and after that as Pickering, Michael Wallace, and now-Judge Southwick had trouble getting confirmed. But before that, the Southwick seat belonged to Louisiana Judge Henry Politz, who vacated it by taking senior status in 1999.
      So far, there is still no nomination to replace Judge Barksdale; I wonder if it has something to do with a tug-of-war over which state the new judge will come from (especially since Louisiana is home to the only Democratic senator in the 5th Circuit).

      February 20, 2010, 12:59 am

    8. BZ says:

      I thought this was the best succinct discussion I’d seen of the Trott vacancy kerfuffle. Too bad it was buried inside instead of being a focal point for the discussion at the front and end of the article.

      [And I was going to mention in passing the origins of the word "symposium" as being from the Greek for, basically, a drunken bachelor party.]

      February 20, 2010, 10:40 am