The executive branch and the judiciary intersect in several key areas. Perhaps the most fundamental is the president’s responsibility to nominate federal judges. This essay explains the president’s role in the appointment process and the way that role has evolved throughout the nation’s history. To some extent, presidents have employed their own approaches to judicial selection.  Shifts in the norms surrounding the process have always helped to shape the exercise of presidential power, however.   

It was not until the final two weeks of the Constitutional Convention of 1787 that the delegates agreed on a method for federal judicial appointment. James Wilson of Pennsylvania, a future justice of the Supreme Court, suggested appointment by “a single, responsible person” to avoid the political dealmaking that could result from appointment by the legislature. In contrast, John Rutledge of South Carolina, also a future justice, felt that reposing such a power in the president seemed almost monarchical. James Madison opposed granting the power either to the president or the entire Congress but believed that the members of the Senate would be “sufficiently stable and independent to follow their deliberate judgments.” Eventually, the delegates compromised by agreeing on a proposal by Nathaniel Gorham to adopt the method used in his home state of Massachusetts: appointment by the executive with the advice and consent of the smaller branch of the legislature.

Article II’s Appointments Clause delegated to the president the task of nominating federal judges but provided no guidance as to how the chief executive was to carry out this duty. Accordingly, presidents have varied in their approaches to judicial selection depending on their personal preferences, prevailing norms in the Senate, political circumstances, and the growth of government bureaucracy. In modern times, presidents have exercised the most discretion in filling vacancies on the Supreme Court of the United States, slightly less in selecting nominees to the U.S. courts of appeals, and have deferred to the Senate most in the selection of U.S. district court judges, in whom home-state senators have the most direct interest. After a nomination is confirmed, the president’s final task is to sign a commission that makes the judge’s appointment official. Once commissioned, judges may take the oath of office and begin service on their courts.

In the early republic, the nomination process was relatively free of bureaucracy and did not frequently cause controversy. Presidents often selected men known to them through ties of kinship, friendship, or political alliance. These nominees were usually confirmed quickly; George Washington had all six of his Supreme Court nominees and all thirteen of his U.S. district court nominees confirmed within two days of the Judiciary Act of 1789 becoming law (although some declined the appointments). Washington’s successors in the early nineteenth century generally got the judicial nominees they wanted as well. When a nomination failed, a declined appointment, rather than a rejection by the Senate, was likely the cause.

The emergence of a new system of political parties—marked by the 1828 split of the Jeffersonian Republicans into Democratic and National Republican factions (the latter of which soon became the Whig Party)—had a significant impact on the judicial nomination process. Stronger and more organized political parties helped to institutionalize and regularize the way presidents selected federal judges. Political activism became a more important pathway to the bench than personal ties, as evidenced by the fact that 78% of nominees during this period held elective office prior to their selection for a judgeship.

During the presidencies of Andrew Jackson, Martin Van Buren, John Tyler, and James Polk, the nomination process became progressively more party directed, while the executive maintained some degree of personal discretion in selecting judges. Cabinet members, U.S. senators, and—especially under Jackson—state party leaders gained influence over judicial nominations. While the secretary of state had played an advisory role in the process since the early republic period, none was more influential than Daniel Webster, who took a particularly active role in making recommendations early in the Tyler presidency. Webster’s role reflected Tyler’s deep trust in him as well as Webster’s particular concern for the federal judiciary. His influence waned, however, when Tyler attempted to align himself with the Democratic Party in 1842 after having been expelled from the Whigs.

Over the next few administrations, party discipline and organization strengthened. As a result, Presidents Zachary Taylor, Millard Fillmore, and Franklin Pierce lost influence over judicial selection to a significant degree. By the time of the Pierce administration (1853–1857), Democratic senators were able to dictate nominations to judicial positions in their states. Pierce and his successor James Buchanan also introduced a change in the selection process by shifting authority over judicial recommendations from the secretary of state to the attorney general.   

The president’s role in judicial selection did not change dramatically with the Whigs’ demise in the 1850s and the rise of the Republican Party. Nominations continued to be party directed, although presidents differed in the purposes behind their selections. Some, like Abraham Lincoln, aimed their selections at furthering a policy agenda, attempting to choose judges who they believed would be likely to rule in accordance with the president’s ideology. Others, like Grover Cleveland, viewed judicial nominations mainly as an opportunity for patronage to strengthen political support for themselves or their parties. In the first years of the twentieth century, most progressives saw the federal courts as hostile to reform. Theodore Roosevelt and Woodrow Wilson, both of whom pursued progressive policies, made appointments intended to shape the judiciary in support of their agendas. Conversely, the conservative Republican presidents of the 1920s—Warren Harding, Calvin Coolidge, and Herbert Hoover, who did not see the federal courts as obstacles to their agendas—made appointments that were less policy oriented and more directed at shoring up political support.

As the twentieth century progressed, judicial selection and nomination became more administratively complex and, as the modern vetting process emerged, involved more participants. From the 1930s on, officials from the White House, the Department of Justice, and the Federal Bureau of Investigation, as well as Senate Judiciary Committee staff members, performed more formalized background investigations of potential nominees. The American Bar Association’s Standing Committee on the Federal Judiciary was formed in 1952 to evaluate and rate the president’s judicial candidates prior to nomination.

The increased bureaucratization of the selection process, while significant, did not preclude the president from exercising individual discretion over judicial nominations. Modern presidents have employed a variety of individual styles in selecting federal judges. Franklin D. Roosevelt enjoyed being personally involved in the process; at first, he made patronage appointments to further his own political aims, but after being reelected in 1936, he focused on nominees who would help advance his policies. In comparison, Dwight D. Eisenhower set out general criteria for judicial appointments but rarely intervened in specific nominations, preferring to leave the details to his attorney general. John F. Kennedy likewise placed great trust in his attorney general—his brother Robert—and in his deputies. Lyndon B. Johnson, by contrast, micromanaged appointments in certain instances.

Jimmy Carter aimed to reform the judicial selection process to eliminate patronage and elevate the importance of qualifications. He established a nominating commission for the U.S. courts of appeals, which in turn created panels for each circuit to recommend nominees. While senatorial prerogatives were stronger with respect to district court judges, Carter encouraged senators to set up similar nominating commissions in their states, and many did. Upon succeeding Carter, Ronald Reagan disbanded the appellate nominating commission, seeking to give the White House a more central role in the selection process. He attempted to gain more discretion over district court appointments by asking senators to submit three to five names to the attorney general for consideration. Some senators complied, while others continued to submit a single selection, effectively tying the hands of the White House. Reagan’s staff played a significant role in screening candidates and, occasionally, making recommendations. At the Department of Justice, the new Office of Legal Policy became the center of the screening process. Reagan also added a personal touch to his selection process, calling each potential nominee on the phone to offer them a judgeship.

Internal Senate procedures have affected the way presidents nominate judges. The practice of “senatorial courtesy, ” i.e., not voting to confirm a nominee to which a senator from the same state objects (especially a senator of the president’s party), has existed since the government’s founding, providing a check on the president’s discretion to choose district judges in particular. Since 1917, the Senate Judiciary Committee’s “blue slip” policy has made senatorial courtesy more formal, giving presidents extra incentive to consult with senators before making judicial nominations. Currently, when a nomination for a U.S. district court or U.S. court of appeals seat (such seats are traditionally associated with a particular state within the circuit) is submitted, the committee’s chair sends both home-state senators—regardless of party affiliation—a slip printed on blue paper which they are requested to return to the committee indicating whether they approve or disapprove of the nominee. The return of a negative blue slip, or the failure to return a slip, has often halted all action on a nomination or, if the nomination does proceed, typically has weighed against confirmation. Only on rare occasions have judicial nominees without two positive blue slips been confirmed.

In the early twentieth century the Senate began to increase its scrutiny of the president’s nominations to the Supreme Court. Woodrow Wilson’s 1916 nomination of Louis Brandeis was a watershed moment, bringing­ about the biggest confirmation battle the nation had seen to that point. With many conservatives hostile to Brandeis’s well-known progressivism, and some senators opposed to the appointment of a Jewish justice, the Senate Judiciary Committee immediately established a subcommittee to investigate his background. The subcommittee held an extensive series of hearings—only the second ever held for a Supreme Court nominee and the first to be public—that lasted throughout February and March of 1916, producing a record of nearly 1,600 pages. While he did not testify, Brandeis participated by advising the attorneys advocating his nomination and providing documents when necessary. The Brandeis hearings established a new method for dealing with Supreme Court nominations that soon after became the norm. Nominees, rather than merely being at the center of a political debate, were essentially placed on trial, with their fitness for the Court at issue.

Presidents have occasionally clashed with the Senate, resulting in judicial nominations that were not confirmed. Rarely, however, have presidents had their judicial nominees rejected by a vote on the Senate floor. Out of the thousands of judicial nominations submitted in the nation’s history, only twenty-seven have been disposed of in this manner, eleven of which were for the Supreme Court. Only four nominations have been voted down since 1951: three controversial Supreme Court nominations and one U.S. district court nomination. Instead, in the modern era, the chair of the Senate Judiciary Committee typically has not reported nominations unlikely to be confirmed to the full Senate for a floor vote. When a nomination is not voted on, it is returned to the president at the end of the Senate’s session, an increasingly common occurrence in recent decades. In most cases, nominations have been returned not because of controversy but because the Senate did not have time to act on them before the close of a session. Frequently, presidents have resubmitted these nominations during the next session, and many of them have been confirmed.

The Constitution grants the president an additional appointment power not involving Senate confirmation. Article II, section 2 authorizes the president to make recess appointments of federal judges and other officials when the Senate is not in session. In contrast to regular judicial appointments entailing tenure “during good behavior,” recess appointments expire at the end of the Senate’s next session. Presidents have used the recess appointment power to put judges on the bench without Senate approval more than 300 times, including twelve times for justices of the Supreme Court. Many, but not all, judicial recess appointees subsequently received a regular nomination and Senate confirmation to a permanent position. The U.S. Court of Appeals for the Second Circuit held judicial recess appointments constitutional in U.S. v. Allocco (1962). Later, the Ninth and Eleventh Circuits followed suit. The Supreme Court of the United States has not ruled on the issue. The practice of using recess appointments for the judiciary fell into disfavor after Eisenhower made three such appointments to the Supreme Court in the 1950s. In 1960, the Senate passed a resolution disapproving of the practice on the grounds that questions might be raised about the independence of a justice who had not yet been confirmed to a permanent appointment. Since 1964, only four judicial recess appointments have been made, and in more recent years the Senate has held pro forma sessions preventing a recess of sufficient duration to activate the recess appointment power.

The president’s power to appoint federal judges is a fundamental component of the relationship between the executive and judicial branches. All three branches of the federal government intersect in the judicial nomination and confirmation process, exemplifying the system of checks and balances devised by the founders. The president influences the composition of the judiciary by selecting nominees, but presidential discretion is always limited by the need for Senate approval. While the fundamental nature of this process has not changed, political circumstances, Senate norms, presidential preferences, and the growth of government bureaucracy have ensured some degree of fluidity in practice.  

Further Reading:
Denning, Brannon P. “The ‘Blue Slip’: Enforcing the Norms of the Judicial Confirmation Process.” William & Mary Bill of Rights Journal 10, no. 1 (Dec. 2001): 75–101.

Gerhardt, Michael J., and Michael Ashley Stein. “The Politics of Early Justice: Federal Judicial Selection, 1789–1861.” Iowa Law Review 100, no. 2 (Jan. 2015): 551–615.

Goldman, Sheldon. Picking Federal Judges: Lower Court Selection from Roosevelt Through Reagan. New Haven: Yale University Press, 1997.

Hall, Kermit L. The Politics of Justice: Lower Federal Judicial Selection and the Second Party System, 1829–1861. Lincoln: University of Nebraska Press, 1979.

Palmer, Betsy. “Evolution of the Senate’s Role in the Nomination and Confirmation Process: A Brief History.” Congressional Research Service, Report RL31948, May 13, 2009.

Parry-Giles, Trevor. “For the Soul of the Supreme Court: Progressivism, Ethics, and ‘Social Justice’ in the 1916 ‘Trial’ of Louis Brandeis.” Rhetoric and Public Affairs 2, no. 1 (Spring 1999): 83–106.

Rutkus, Denis Steven. “Role of Home State Senators in the Selection of Lower Federal Court Judges.” Congressional Research Service, Report RL34405, February 11, 2013.

Sollenberger, Mitchel A. “The History of the Blue Slip in the Senate Committee on the Judiciary, 1917–Present.” Congressional Research Service, Report RL32013, October 22, 2003.