Nominations, Confirmations, and Departures of Federal Judges 3 study, choosing the most qualified judges is “the motivation least likely to drive presidential considerations” (Watson and Stookey 1995, 64). In general, research indicates that merit is almost always a necessary rather than a sufficient condition for appointment and confirmation, providing a floor or baseline for judicial selection. Candidates lacking in legal experi- ence, knowledge of the law, or demonstrated analytical competence are unlikely to make it onto the federal courts. As political scientist Lawrence Baum puts it, legal competence and adherence to ethical standards “can be considered screening criteria for potential nominees. These criteria may eliminate some people from consideration, but enough candidates survive the screening process to give presidents a wide range of choices for a nomi- nation” (Baum 2001, 43). Since there is no shortage of meritorious candidates, what factors other than merit determine who is chosen from among the wide array of quali- fied contenders? Political science research and legal scholarship point to a variety of political considerations that influence who serves on the federal bench. At the heart of these political considerations is the observation that a political party that gains control of all three branches of the federal government wields tremendous power conversely, a loss of control of one of the branches, including the judiciary, can obstruct a political party’s agenda. Political scientist Keith Whittington explains that the federal courts “have been a political prize to be won and a lagging indicator of political success. Through that political influence, the effective constitu- tional rules of the political system itself are ultimately responsive to politi- cal currents” (Whittington 2018, 522). It should not be surprising, then, that “[t]raditionally, scholars have found, the overwhelming majority of all federal judicial nominees come from the same party as the nominating President” (Rutkus 2016, 12). A political party that controls the presidency or the Senate or both can seek to gain control over the federal courts by nominating and confirming judges to the bench who have exhibited compatible ideological positions and judicial philosophies. A president’s choice to fill a judicial vacancy is influenced by a candidate’s prior record, which can be discerned through such things as judicial opinions, academic writings and speeches, work experience, and party affiliation. Members of the Senate are similarly influenced, and when the party that controls the Senate and the presidency are the same, that party is in a much better position to fill the federal bench with judges who share the party’s policy preferences and judicial philosophies. When the Senate and presidency are controlled by different politi- cal parties, nominations are often influenced by how much resistance the president expects to receive from the opposition party. In addition,
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