Supported by the custom of "senatorial courtesy," Senators of the
President's party have long played, as a general rule, the primary
role in selecting candidates for the President to nominate to
federal district court judgeships in their states. They also have
played an influential, if not primary, role in recommending
candidates for federal circuit court judgeships associated with
their states. For Senators who are not of the President's party, a
consultative role, with the opportunity to convey to the President
their views about candidates under consideration for judgeships in
their states, also has been a long-standing practice -- and one
supported by the "blue slip" procedure of the Senate Judiciary
Committee. Senators, in general, exert less influence over the
selection of circuit court nominees. Whereas home state Senators of
the President's party often dictate whom the President nominates to
district judgeships, their recommendations for circuit nominees, by
contrast, typically compete with names suggested to the
Administration by other sources or generated by the Administration
on its own. Whether and how a state's two Senators share in the
judicial selection role will depend, to a great extent, on their
respective prerogatives and interests. Senators have great
discretion as to the procedures they will use to identify and
evaluate judicial candidates, ranging from informally conducting
candidate searches on their own to relying on nominating
commissions to evaluate candidates. Contact between a Senator's
office and the Administration can be expected to clarify the nature
of the Senator's recommending role, including the degree to which
the Administration, in its judicial candidate search, will rely on
the Senator's recommendations. If a President selects a district or
circuit court nominee against the advice of, or without consulting,
a home state Senator, the latter must decide whether to oppose the
nomination (either first in the Senate Judiciary Committee or later
on the Senate floor). From the Senator's standpoint, opposition to
the nomination might serve a number of purposes, including helping
to prevent confirmation or influencing the Administration to take
consultation more seriously in the future. On the other hand,
various considerations might influence the Senator not to oppose
the nomination, including the desirability of filling the vacant
judgeship as promptly as possible and, if more home state vacancies
are possible in the future, whether these might provide the Senator
a better opportunity for exerting influence over judicial
appointments. In recent years, the role of home state Senators in
recommending judicial candidates has given rise to various issues,
including the following: What constitutes "good faith" or "serious"
consultation by the Administration? Should home state Senators
always have the opportunity to provide their opinion of a judicial
candidate before he or she is nominated? How differently should the
Administration treat the input of Senators, depending on their
party affiliation? What prerogatives should home state Senators
have in the selection of circuit court nominees? Should the policy
of the Judiciary Committee allow a home state Senator to block
committee consideration of a judicial nominee?
General
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