Elevating Justice: The Strategic Elevation of District Court Judges to the Courts of Appeals

Traditionally, a president elevated district court judges to vacant appellate court positions because to do so would give the president an opportunity not only to place a judge sharing his preferences on an appellate court, but also to give him the opportunity to fill the newly created district court position with another judge sharing his preferences. This is the ultimate example of strategic behavior. However, presidents do not always take this course of action when filling vacant appellate court positions. The purpose of this dissertation is to understand why.

This dissertation examines how presidents have used elevations from 1969 to 2008 to fill vacant appellate court positions. The analyses herein do find that presidents use elevations strategically, but not in the strategic ways discussed in the current literature. The first part of this dissertation discusses how the several presidents since 1969 used elevations to fill vacant appellate court positions. This analysis shows that different presidents use elevations in different contexts. For example, divided government, party affiliation of the president, the location of the appellate court vacancy and the partisan composition of the court where the vacancy occurs, and the number of home-state senators all affect when a president will use elevations to fill vacant appellate court positions.

The next section of this dissertation uses multivariate regression to empirically assess when a president is likely to use elevations. I posit that presidents use elevations to stop potential policy entrepreneurs from thwarting their nominees. I find support for this theory. I specifically find that presidents are likely to elevate district court judges when they are well qualified and when the partisan composition of an appellate court hangs in the balance.

Finally, I test whether using elevations helps the president get his district court nominees to positions created via elevation more quickly than other nominees. Results show that those chosen to fill district court positions created via elevation are nominated and confirmed more quickly than other district court nominees. I do not find evidence that they are more closely aligned ideologically to their nominating president than other district court nominees.