Safeguarding Presidential Policy through Appointments to the US Court of Appeals

• In Event: Presidential Appointments

Abstract

Many scholars argue that judicial independence is a necessary condition for a stable democracy. However, in many democracies, including the United States, executives play a substantial role in the selection of judges to national and subnational judiciaries. This dynamic relationship between the executive and judicial branch has important implications on the ability of courts to safeguard democratic institutions and practices while allowing those courts the ability to function as an institutional check on the executive branch responsible for placing judges on the bench in the first place.

If able, executive work to appoint judges who match the ideal point of the executive. However, a number of obstacles can make this appointment of preferred judges difficult for the executive. Important considerations include the priorities of the executive and the executive’s allocation of resources to achieve her priorities. In particular, executives are concerned with retaining office (e.g., reelection) if permitted and securing their policy accomplishments (e.g., legacy). Resources allocated to reelection, for instance, means that those resources cannot be used to safeguard policy.

We argue that executives have information-gathering resources that can be used for a wide range of reasons (e.g., political appointments, lobbying for policy, national security, etc.), including the screening potential jurists. When an executive has the ability to retain their office through reelection, the executive will devote these information-gathering resources to achieve that end. This means less resources are spent on safeguarding policy and legacy as the executive is trying to lengthen their time horizon in office to achieve more policy gains.

We then argue that once an executive is no longer able to seek retention (e.g., through term limits), then the executive will turn those resources to safeguard their policy and legacy. Knowing that judges serve long after the executive leaves office, executives understand that appointing judges who closely match the executive’s policy preferences better insulates the executive’s policy gains from future action by other policymakers. Therefore, with retention no longer a priority, executives allocate more resources to safeguarding policy and legacy through the screening of potential jurists.
We test our theory and accompanying game theoretic design using appointments to the United States Court of Appeals from President Eisenhower through President Obama. We find that term in office matters – Presidents appoint circuit court judges closer to the President’s ideal point in their second term (when term limited) compared to their first term.

Our paper makes clear the importance of time horizons and allocation of information-seeking resources in the judicial selection process. While this paper considers the federal intermediate appellate court in the United States, our theoretical framework can be applied to other democracies at the national and subnational levels. Exploring how these priorities influence executive decisionmaking in the selection of judges helps us understand the important implications on interbranch relations, the functionality of political and institutional checks on the executive, preserving democratic gains in the judiciary, and courts safeguarding democratic institutions and practices.

Authors

• Michael Anthony Catalano, Binghamton University, SUNY

• Allison Bugenis, Binghamton University

• Hayley Munir, Illinois State University