Published July 15, 2024
Harvard Journal of Law & Public Policy
The judicial appointment process ranks among the most contentious and consequential functions of the federal government. Given the federal courts’ exclusive constitutional role in resolving cases and controversies—including those involving controversial constitutional questions—judicial appointments command considerable attention from the White House, the Senate, and the media. This essay presents a comprehensive summary of that process based on the author’s time working on judicial nominations in the Office of the Senate Republican Leader, the committee on the Judiciary of the United States Senate, and the Office of Legal Policy at the U.S. Department of Justice.
In some ways this essay provides an update to Rachel Brand’s 2010 article, “A Practical Look at Federal Judicial Selection,”[1] which laid out a succinct and practical view of the judicial-selection process from the perspective of the Bush administration. Much has changed in the decade since. The exercise of the “nuclear option” to abolish the 60-vote cloture threshold for judicial nominees and the dilution of the blue-slip process for circuit nominees make it easier today to confirm some nominees over the objections of their home-state Senators. As a result of such watershed changes, some of Ms. Brand’s contentions, such as that “the likeliest way to become a judicial nominee is to be recommended to the President by a Senator,”[2] may no longer be true. While a Senator’s recommendation certainly does not hurt a nominee, the contemporary appointments process relies far less on the interests or opinions of individual Senators than it did two decades ago because individual Senators simply have fewer tools at their disposal to defeat non-preferred nominees when only a simple majority is needed to confirm them. This decline in the power over appointments today that individual Senators once wielded has accordingly eroded their relative bargaining power.
As the institutional power dynamics within the Senate have shifted over time, two major modern obstacles to confirmation have emerged: senatorial defections from within the President’s party and the scarcity of time available on the Senate Floor. What matters most in this “post-nuclear age” of judicial appointments, then, is the ability of a presidential administration and Senate leadership to act in tandem to shepherd nominees through a labyrinthine nomination and confirmation process, steering clear of the landmines of intra-party opposition while still allowing adequate Floor time for their consideration. The purpose of this essay is to explain the intricacies of that process.
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Michael A. Fragoso is a fellow at the Ethics and Public Policy Center in the Constitution, the Courts, and the Culture Program, where he writes and speaks on issues relating to the law, the federal judiciary, and Congress. His writing has appeared in The Wall Street Journal, National Review, The Harvard Journal of Law & Public Policy: Per Curiam, and elsewhere.
