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Wednesday, February 28, 2018

Judicial Nomination Cascades

Earlier this month, University of Colorado law professor Melissa Hart was sworn in as the newest Justice of the Colorado Supreme Court. Her appointment to that seat was made possible when Allison Eid left the court to join the Tenth Circuit Court of Appeals, which itself was made possible when Neil Gorsuch left the Tenth Circuit to join the Supreme Court of the United States.

This is an example of a nomination cascade – the opening of a position on the bench made possible when a sitting judge is nominated for another court. These vacancies are almost always filled by appointment; even in state courts where judges are elected, governors typically have the ability to make interim appointments.

The Gorsuch-Eid-Hart example is in fact a double cascade, with the Gorsuch nomination leading to two further openings. That fact alone makes it unusual: usually the first or second opening is filled with a nominee who is not already a judge. But it is also unusual because of its speed: three seats were filled, in cascading order, in less than one calendar year. 

To get a sense of how frequently judicial cascades occur, I took an admittedly quick look at all federal appellate court (including Supreme Court) nominations for the Trump, Obama, George W. Bush, and Clinton administrations. I focused on appellate nominations because they seemed most likely to trigger cascades, although it is certainly the case that a federal district nomination or a state appellate court nomination can trigger them as well. A few interesting things jumped out.

First, one might expect double (or even triple) cascades to follow U.S. Supreme Court nominations, given that most of the current Justices were elevated from the U.S. Court of Appeals. In fact, Gorsuch was the only Supreme Court nominee in the last 25 years to trigger a double cascade. George W. Bush did not even get a chance to start a cascade for his two Supreme Court nominees: although John Roberts and Samuel Alito were both appointed and confirmed in 2005 (the first year of Bush’s second term), neither of their seats was filled until well into the Obama Administration. There were a number of double cascades early in each of the Obama, Bush, and Clinton Administrations, but all started with an opening at the U.S. Court of Appeals.  Some cascades were entirely federal (court of appeals-district-court-magistrate or bankruptcy), while others were a state-federal mix.

Second, most presidents took the opportunity to create cascades (by appointing lower federal and state judges) early in their first term. This makes some intuitive sense: a president coming off of an election vistory, with a significant amount of political capital, should be more willing to create additional openings in the federal judiciary with the expectation of filling them with his own nominees.  Presidents in their second terms clearly adopted a different strategy: Obama and Clinton largely nominated government and private practice attorneys for federal appellate positions, while George W. Bush went with a heavier dose of state judges. Both strategies avoided the possibility of creating a vacancy in the federal district courts which might remain open until the next administration.

I found one triple cascade in my early review, which occurred late in the Bush Administration.  In May 2008, G. Steven Agee was confirmed to the Fourth Circuit Court of Appeals, which opened a seat on the Virginia Supreme Court. That position was filled by Leroy Millette, which opened a seat on the Virginia Court of Appeals. That position was filled by Cleo Powell, which opened a seat on the Virginia Circuit Court. (I’m not sure who filled that seat –yet.)

One might ask whether nomination cascades are a good or bad thing for the judiciary and the public. One clear advantage is that nominees have a proven level of judicial experience, and are less likely to need time to get up to speed on the nature of judging. At the same time, looking only to existing judges creates a pipeline effect, in which judicial aspirants have to start at lower levels of the state or federal judiciary in order to get noticed for a higher court nomination. That would seem to be a mixed blessing.

My guest-blogging month is up, but I am going to continue to play with the historical data. I’ll post any interesting new findings in the comments. Thanks to the entire Prawfs crew for letting me hang out here once more.

Posted by Jordan Singer on February 28, 2018 at 12:00 PM in Judicial Process, Law and Politics | Permalink

Comments

CJ Rehnquist confirmed September 25, 1986; then
Justice Scalia confirmed (replacing Rehnquist) September 26, 1986; then
Judge David Sentelle confirmed from Dist. Ct. bench replacing Scalia September 11, 1987; then
Judge Richard Voorhees confirmed to the Dist. Ct. bench replacing Sentelle October 17, 1988.
Judge Voorhees came to the bench from private practice.

Posted by: Craig | Mar 1, 2018 11:31:54 AM

The first-term vs. second-term dynamic may also just reflect supply. A new President who comes in and changes the party of the White House (D to R, or R to D) will have a limited supply of top district court judges from his party who easily appointable and still of the right age range. By the President's second term, the top district court judges may have mostly been considered already or aged out.

Posted by: Orin Kerr | Mar 1, 2018 11:02:52 PM

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