Senatorial courtesy and the Supreme Court
Senatorial courtesy is an informal practice that has influenced the appointment of federal district court judges since the 1840s. While the president nominates these judges, he is expected to consult with the senators from the respective state, particularly if they belong to the same political party. In cases where both state senators align with the president's party, the senior senator wields significant influence, holding the power to veto nominations. The process traditionally involved a "blue slip" system, where senators could express their approval or disapproval of a nominee, with a lack of response effectively functioning as a veto.
Changes in this process have occurred over the decades, especially under the leadership of notable Senate Judiciary Committee chairs, including Edward Kennedy and Joseph Biden. Their policies have shaped the significance of these consultations, though some ambiguity remains about the level of required engagement. The Supreme Court recognized senatorial courtesy in the 1993 case DeVesa v. Dorsey, concluding it to be a nonjusticiable political question. Despite some senators advocating for merit-based selections through advisory groups, the tradition of viewing district judgeships as patronage positions persists, reflecting the nuanced interplay between political allegiance and judicial appointments.
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Senatorial courtesy and the Supreme Court
Description: Practice by which the president, before nominating a person for a federal district court judgeship, consults with the senators from that candidate’s own state.
Significance: This practice results in district court judgeships sometimes becoming patronage positions of U.S. Senators rather than independent nominations of the president.
Senatorial courtesy, an informal process that dates back to the 1840s, is a consideration in the appointment of federal district court judges. Although the president appoints these judges, he is expected to consult with the senators from the state to which the district judges are to be appointed. If the president and the senator belong to the same party, the senator has an absolute veto over the nomination. If both senators belong to the same party as the president, then the senior senator has the veto. Presidents will normally even consult with senators from opposition parties before submitting names of nominees to the Senate. If a senator opposes a nominee from his or her own state, the president will normally not present the nomination to the Senate because the Senate will seldom approve a nomination opposed by a senator.
Until the early 1970s, the nominating process had generally become institutionalized through a blue slip system. When the president formally nominated a candidate, the Senate Judiciary Committee sent to each of the nominee’s home state senators a blue slip of paper asking for their opinion and information concerning the nomination. If the senator approved, he or she returned the slip; if not, the senator retained the slip. If a senator from the president’s party did not return the slip, it constituted a veto of the nomination.
In the 1970s, the incoming committee chair, Democrat Edward Kennedy, announced he would not unilaterally table a nomination if the blue slip was not returned. When Democrat Joseph Biden became chair of the committee in 1987, he announced a policy under which failure to consult with the home state senator, combined with a negative blue slip, would result in the tabling of a nomination. Later, Biden modified his position to say that if a senator submitted a blue slip after having been consulted, his or her view would be given great weight; however, it might not veto the nomination. This policy was continued by Republican Senator Orrin Hatch when he became chair of the committee in 1995. Although there continues to be uncertainty about the degree of consultation required and what great weight actually means, it is obvious that the president needs, at a minimum, the grudging approval of home state senators from his party and in the case of powerful senators, the actual choice may be that of the senator.
The Supreme Court addressed the issue of senatorial courtesy in the case of DeVesa v. Dorsey in 1993, when the Court upheld a lower court’s ruling that senatorial courtesy was a nonjusticiable political question. Senatorial courtesy continues to play a role in judicial appointments. Some senators have agreed to choose federal district judges on the basis of merit alone based on the recommendations of merit advisory groups and commissions; however, the practice is voluntary, and some senators continue to see district judgeships as a patronage position.
Bibliography
Abraham, Henry J. The Judicial Process. 7th ed. New York: Oxford University Press, 1998.
Carp, Robert A., and Ronald Stidham. Judicial Process in America. 4th ed. Washington, D.C.: Congressional Quarterly, 1998.
“Is Senatorial Courtesy Unconstitutional?” Law.com, 2022, www.law.com/njlawjournal/2022/09/04/is-senatorial-courtesy-unconstitutional/?slreturn=20230306065144. Accessed 6 Apr. 2023.
Kratz, Jesse. "The Origins of Senatorial Courtesy." Pieces of History, 3 Aug. 2014, prologue.blogs.archives.gov/2014/08/03/the-origins-of-senatorial-courtesy/. Accessed 6 Apr. 2023.