Nominating Criteria

Nominating Criteria in the United States

Factors that govern executive choices for judicial nominations. Nominating criteria vary by executive, of course, and differ depending on the kind of judgeship under consideration. Despite the variance, some general patterns are apparent. When presidents are considering a Supreme Court nomination, the most important criteria seem to be professional competence and policy compatibility. Generally, presidents attempt to nominate lawyers of distinction. An important element is the absence of any taint with respect to ethical standards. Of critical concern to a president is the political orientation of the prospective judge. A president brings to office an agenda, and no president will knowingly nominate someone to the Supreme Court who will make fulfillment of that agenda more difficult. While a justice may not always vote as the nominating president hopes, ideological compatibility produces judicial positions that are generally in accord with a president’s policy preferences. Beyond these criteria, presidents are very cognizant of the practical political dimensions of a nomination. Presidents seek to make nominations that have no political “cost” in that confirmation will be virtually automatic. As a result, a president need not engage in any political “horse-trading” to obtain confirmation, which allows the president to conserve things to trade on other issues. Similarly, particular nominees may help a president with certain constituency groups. President Reagan’s nomination of Sandra Day O’Connor was at least in part aimed at closing the so-called “gender gap,” Reagan’s relatively unfavorable standing with women. Finally, presidents may use even a Supreme Court nomination as a political reward, although this is a much more critical factor in the nomination of lower federal judges. Partisan reward is also a key factor with gubernatorial nominations at the state level. Since many state nominees will ultimately have to run in some form of election, likelihood of retaining the judgeship at the ballot box is a consideration, but it never, of course, comes into play with federal judgeships.

See Also

Executive Appointment (Judicial Personnel issue).

Analysis and Relevance

The nominating criteria that govern executive nominations of judges vary depending on the appointing official and the court involved. Historically, the ideological factor has been most important at the U.S. Supreme Court level, with partisan reward controlling lower federal court nominations. A generally similar pattern exists at the state level. The use of elections in so many states, however, makes electability a unique but critical factor at the state level. The traditional pattern in federal judicial nominations was not maintained by President Reagan, who used his nominating authority to reshape the ideological composition of the lower federal courts. Early in his tenure, Reagan established a Committee on Federal Judicial Selection made up of key people from the White House staff and the Justice Department. This group played an ongoing role in federal judicial selection and placed a premium on ideological and policy compatibility. It was through this committee, for example, that the Reagan Administration was able to honor its commitment to the “pro-life” position on the abortion issue. This approach is likely to be maintained during the presidency of George Bush. This approach did have the effect of making the federal Judiciary (U.S.) much more conservative. By the end of Reagan’s second term, more than half of the lower federal court judges had been nominated using largely ideological standards.

Notes and References

  1. Definition of Nominating Criteria from the American Law Dictionary, 1991, California

Nominating Criteria: Open and Free Legal Research of US Law

Federal Primary Materials

The U.S. federal government system consists of executive, legislative, and judicial branches, each of which creates information that can be the subject of legal research about Nominating Criteria. This part provides references, in relation to Nominating Criteria, to the legislative process, the federal judiciary, and the primary sources of federal law (cases, statutes, and regulations).

Federal primary materials about Nominating Criteria by content types:

Laws and Regulations

US Constitution
Federal Statutory Codes and Legislation

Federal Case Law and Court Materials

U.S. Courts of Appeals
United States courts of appeals, inclouding bankruptcy courts and bankcruptcy appellate panels:

Federal Administrative Materials and Resources

Presidential Materials

Materials that emanate from the President’s lawmaking function include executive orders for officers in departments and agencies and proclamations for announcing ceremonial or commemorative policies. Presidential materials available include:

Executive Materials

Federal Legislative History Materials

Legislative history traces the legislative process of a particular bill (about Nominating Criteria and other subjects) for the main purpose of determining the legislators’ intent behind the enactment of a law to explain or clarify ambiguities in the language or the perceived meaning of that law (about Nominating Criteria or other topics), or locating the current status of a bill and monitoring its progress.

State Administrative Materials and Resources

State regulations are rules and procedures promulgated by state agencies (which may apply to Nominating Criteria and other topics); they are a binding source of law. In addition to promulgating regulations, state administrative boards and agencies often have judicial or quasi-judicial authority and may issue administrative decisions affecting Nominating Criteria. Finding these decisions can be challenging. In many cases, researchers about Nominating Criteria should check state agency web sites for their regulations, decisions, forms, and other information of interest.

State rules and regulations are found in codes of regulations and administrative codes (official compilation of all rules and regulations, organized by subject matter). Search here:

State opinions of the Attorney General (official written advisory opinions on issues of state law related to Nominating Criteria when formerly requested by a designated government officer):

Tools and Forms

Law in Other Regions

*This resource guide is updated frequently. However, if you notice something is wrong or not working, or any resources that should be added, please notify us in any of the "Leave a Comment" area.

Leave a Comment