"State Representation" in Appointments to Federal Courts of Appeals

“State Representation” in Appointments to
Federal Courts of Appeals
R. Sam Garrett and Kevin M. Scott
Analysts in American National Government
Government and Finance Division
Summary
When a seat becomes vacant on a federal court of appeals, the President has the
opportunity to nominate a new judge for the Senate’s consideration. Geography is often
a factor in the decision, particularly whether the new judge will be nominated from the
same state as the predecessor. One scholar refers to the custom of maintaining state
continuity in seats within a court (e.g., a “Missouri seat” or an “Ohio seat”) as “state
representation.” Federal statutes currently require that judges “reside” in the circuit at
the time of appointment and while in active service, and that each state within the circuit
be represented among the court’s judges, but do not require that particular seats be
reserved for nominees from particular states.
This report provides an overview and analysis of changes in state representation of
circuit court judges confirmed since 1891, when Congress created the modern regional
appeals courts. The data reveal that some seats are consistently filled by judges from the
same state. Other seats are filled by judges from various states in that circuit. Overall,
changes in state representation have occurred in 24% of confirmed nominations since
1891. Changes in state representation were more common prior to the 1960s than in
recent decades; 14% of appointments to circuit courts after the Kennedy Administration
have changed state representation. The frequency of those changes has also varied by
circuit. This report will be updated when any future changes in state representation
occur.
Background. The federal courts of appeals, often called “circuit courts,” remain
the last avenue of appeal for all but the handful of cases heard by the Supreme Court of
the United States. Eleven regional circuits cover the 50 states and U.S. territories. Each
circuit court includes at least three states, and is currently authorized to have between six
and 28 judgeships. A total of 179 authorized judgeships are available to the courts of
appeals, although not all positions are currently filled.1 There are also courts of appeals


1 See Administrative Office of the U.S. Courts. “Table C, U.S. Courts of Appeals, Additional
Judgeships Authorized by Judgeship Acts”; available at [http://www.uscourts.gov/history/
tablec.pdf]. The 179 authorized judgeships include the Court of Appeals for the District of
(continued...)

for the District of Columbia Circuit and the Federal Circuit, but those courts do not have
the same connection to state geography as the regional circuit courts of appeals.
The Constitution of the United States empowers the President to make nominations
for judicial vacancies, with “advice and consent” from the Senate.2 “State representation”
— what one scholar describes as particular judicial seats on the circuit courts being
affiliated with particular states — is customary for many seats, but it is not a formal
requirement.3 A 1997 law4 requires that every state within a circuit be represented among
appeals court judges by a resident of that state. In addition, except for the D.C. and
Federal Circuits, appeals nominees must “reside” within the circuit at the time of
appointment and “thereafter while in active service.”5 Otherwise, the President is not
required by statute to nominate appeals judges from particular states. Selection of
appellate nominees is generally the product of consultation between the President and
Senators representing states within the circuit in question.
Some high-profile nominations to circuit court judgeships have been controversial,
in part because they represented changes in state representation. At least three such cases
have occurred since the mid-1990s. In 1995, a dispute emerged over the nomination of
James L. Dennis, a Louisianan nominated to a Fifth Circuit seat previously occupied by
Mississippian Charles Clark.6 Dennis was eventually confirmed by the Senate. Some
Senators also publicly objected to the nominations of Claude Allen (Fourth Circuit) and
Norman Randy Smith (Ninth Circuit) on state-representation grounds.7 Allen, from
Virginia, was first nominated to the court in 2003 after the death of Judge Francis
Murnaghan of Maryland. Allen’s nomination was eventually returned to the President at
the end of the 108th Congress without Senate approval. The nomination was not
resubmitted in the 109th Congress, and the seat remains vacant as of this writing. In
December 2005, President George W. Bush nominated Norman Randy Smith of Idaho to


1 (...continued)
Columbia Circuit and the Court of Appeals for the Federal Circuit, each of which has 12 judges.
2 U.S. Constitution, Art. II, Sec. 2.
3 This report adopts the term “state representation” from Sheldon Goldman, Picking Federal
Judges: Lower Court Selection From Roosevelt Through Reagan (New Haven, CT: Yale
University Press, 1997), pp. 136-137. Other works or scholars could use alternative terminology.
4 According to P.L. 105-119 § 307 (1997) (codified at 28 U.S.C. 44 § (c)), “In each circuit (other
than the Federal judicial circuit) there shall be at least one circuit judge in regular active service
appointed from the residents of each state in that circuit.” See also 111 Stat. 2493.
5 28 U.S.C. § 44(c).
6 The Dennis nomination was also controversial for other reasons. The Senate floor debate on
his nomination, including a discussion of geography, appears in Congressional Record, vol. 141,
part 19 (Sept. 28, 1995), pp. 26781-26797.
7 On the Allen nomination, see, for example, Statement of Sen. Barbara S. Mikulski, in U.S.
Congress, Senate Committee on the Judiciary, Confirmation Hearing on the Nomination of
Claude A. Allen, of Virginia, to be Circuit Judge for the Fourth Circuit; and Mark R. Filip, ofthst
Illinois, to be District Judge for the Northern District of Illinois, hearing, 108 Cong., 1 sess.,
Oct. 28, 2003, S.Hrg. 108-48 (Washington: GPO, 2004), p. 8. On the Smith nomination, see, for
example, Office of Sen. Dianne Feinstein, “Statement by Senator Dianne Feinstein on theth
Nomination of Randy Smith to the 9 Circuit Court of Appeals,” press release, Mar. 1, 2006.

a seat on the Court of Appeals for the Ninth Circuit. California Senator Dianne Feinstein
publicly objected to the nomination, stating that Smith’s confirmation would result in a
“transfer of a judgeship from California to Idaho.”8 Senator Barbara Boxer, also from
California, and other Senators also objected to the nomination.9 By contrast, Idaho
Senators Larry Craig and Michael Crapo, and others, contended that Smith should be
confirmed to the seat because its previous occupant, Judge Stephen S. Trott, maintained
chambers in Idaho, and because judges from various states had previously held the seat.10
At the beginning of the 110th Congress, President Bush renominated Smith to fill Judge
Trott’s vacancy, but later withdrew that nomination and renominated Smith to replace
Judge Thomas Nelson, who had taken senior status. Nelson was originally nominated
from Idaho.11 The Senate confirmed Smith to the Nelson seat on February 15, 2007. In
addition, according to media accounts, Virginia and North Carolina Senators in 2006
urged the President to nominate a judge from their states to fill the vacancy created by the
resignation of Fourth Circuit judge Michael Luttig, of Virginia, from the court.12 As of
this writing, no nominee has been named to that seat.
Methodology. This report relies primarily on the Multi-User Database on the
Attributes of United States Appeals Court Judges, 1801-1994,13 compiled by Auburn
University political scientists Gary Zuk, Deborah J. Barrow, and Gerard S. Gryski.
Professor Gryski provided CRS with partially updated data, which CRS supplemented
with information from the Federal Judicial History Office at the Federal Judicial Center
(FJC), the FJC’s Federal Judges Biographical Database, the Legislative Information
System (LIS) nominations database, the Senate Executive Journal, and other sources, to
make relevant portions of the database current. This report limits the inquiry to 1891-


8 “Statement by Senator Dianne Feinstein on the Nomination of Randy Smith to the 9th Circuit
Court of Appeals.”
9 See, for example, Kyle Arnold, “Feinstein blocks nomination of Idaho judge to 9th Circuit,”
Associated Press/SFgate.com, Mar. 1, 2006, available at [http://www.sfgate.com/cgi-bin/
article.cgi ?file=/n/a/ 2006/03/01/stat e/n223054S82.DT L].
10 Ibid; and Office of Sen. Michael Crapo, “Craig, Crapo Applaud Smith Nomination,” press
release, Dec. 16, 2005. For a brief overview of Judge Trott’s views on his geographic connection
to the seat, see Stephen S. Trott, “Stephen S. Trott: Reader’s piece about Judge Trott was packed
with mistakes,” Idaho Statesman online, Apr. 5, 2006, available at
[http://www.idaho s t a t e s ma n . c o m/ a p p s / p b c s.dll/article?AID=/20060405/NEWS0503/6040503

14/1001/NEWS].


11 See Keith Perine, “In Conciliatory Move, Bush Nominates Judge Smith to 9th Circuit Idaho
Seat,” CQ Today, Jan. 16, 2007.
12 See, for example, Tim Funk, “Tar Heels wanted for appeals court: Burr, Dole prod president
for more N.C. presence,” Charlotte Observer online [charlotte.com], June 9, 2006, available at
[ ht t p: / / www.char l ot t e .com/ ml d/ obser ve r / news/ l ocal / 14776354.ht m] .
13 The full citation for the original data is “Zuk, Gary, Deborah J. Barrow, and Gerard S. Gryski.
Multi-User Database on the Attributes of United States Appeals Court Judges, 1801-1994
[Computer file]. ICPSR06796-v1. Gary Zuk, Deborah J. Barrow, and Gerard S. Gryski, Auburn
University [producers], 1996. Ann Arbor, MI: Inter-university Consortium for Political and
Social Research [distributor], 1997.” Gerard S. Gryski provided partially updated data to CRS,
which made additional modifications.

2007, since Congress established the modern circuit courts in 1891.14 According to
Professor Gryski, information in the Multi-User Database on the state from which judges
were nominated came from the Senate Executive Journal, Judiciary Committee
questionnaires, and the Executive Calendar.15 Using the Senate Executive Journal and
the LIS nominations database, a CRS reference assistant16 manually checked in the Multi-
User Database all cases of apparent changes in state representation (e.g., a judge
nominated from Florida replacing a judge from Georgia). CRS also conducted random
checks of changes in state representation and other cases listed in the Multi-User
Database, and found only minimal clerical errors.17 In the few cases of conflict between
the Multi-User Database and CRS research, the authors relied on information listed in the
President’s nominating statement in the Senate Executive Journal or the LIS nominations
database as the decisive record. Based on this methodology, the Multi-User Database
appears to be highly reliable. For this report, CRS limited the database to 435 cases in
which changes in state representation were possible, meaning that the first appointee to
each seat was omitted since those appointments necessarily could not have represented
changes.
Changes in State Representation on Federal Courts of Appeals. The
data indicate that a seat is usually filled by a judge nominated from the same state as the
predecessor in that seat. Where changes to state representation on the regional circuit
courts of appeals have occurred, some patterns can be discerned. First, slightly more than
three-quarters of confirmed nominations did not change state representation. Second, a
noteworthy decline in the number of changes in state representation has occurred,
particularly in the past 40 years. Third, some circuits have experienced greater changes
in state representation than others. One explanation for the latter two patterns might be
a practice of rotating seats among smaller states,18 particularly before a federal statute
required that each state be represented on its circuit court and before Congress created
enough judgeships within each circuit to allow each state to be represented at the same
time. The Court of Appeals for the First Circuit, for example, covers the states of Maine,
Massachusetts, New Hampshire, and Rhode Island. Until 1978, the court had only three
authorized judges, so not all of the states could be represented on the court
simultaneously. In general, however, the public record contains very limited information
about why changes in state representation occurred.


14 See 26 Stat. 826. This legislation is commonly known as the “Evarts Act.”
15 This information is based on e-mail correspondence with Prof. Gerard S. Gryski, Auburn
University, May 26, 2006. The state from which a judge was nominated is the state listed in the
Multi-User Database, as described in the methodology above. This report takes no position on
whether this reflects the legal residence of a nominee.
16 Mabel Gracias, a staff member in the CRS Knowledge Services Group, performed these
checks.
17 This includes one change in state representation. The Multi-User Database identified Judge
Jeter C. Pritchard, who was confirmed to the Court of Appeals for the Fourth Circuit in 1904, as
having been nominated from South Carolina. The Senate Executive Journal indicates that
Pritchard was nominated from North Carolina.
18 Sheldon Goldman, Picking Federal Judges, pp. 136-137.

Table 1 summarizes changes in state representation across the regional circuit courts
since 1891. The cells in the table list the number of changes in state representation each
President made in each circuit (e.g., “1 of 2,” meaning one change in state representation
out of two total appointments to that circuit). Of the 435 opportunities for changes in
state representation since 1891, 104 confirmed nominations (24%) resulted in such
changes.19 Viewed differently, slightly more than three-quarters of all appellate vacancies
have been filled by judges nominated from the same states as their predecessors. The 104
switches count the total number of changes in state representation, so if a state “loses” a
seat but “regains” one at a later date, it would be counted as two switches in Table 1.
Accordingly, the 24% figure does not reflect net “gains” or “losses” by states on their
respective circuit courts of appeals. Although the subtotals — for each President and each
circuit — suggest variation in changes in state representation, one should exercise caution
when generalizing from isolated data points. Because vacancies in a given circuit have
occurred infrequently, any change in state representation could have had a substantial
impact on the values in each cell of Table 1. Summary percentages provide information
only about how common changes in state representation have been in a particular circuit
or presidency, not the political context surrounding those changes, such as the impact of
negotiations between the President and the Senate.
Some circuit court seats experienced changes early in their histories, but have since
stabilized. Other seats experienced frequent changes throughout their histories. Table
1 shows that changes in state representation were relatively common through the Kennedy
Administration compared with more recent Administrations. Specifically, 40% of
nominations through the Kennedy Administration marked changes in state representation,
compared with 14% for the Johnson Administration through the present. In fact, half or
more of all circuit court nominations for Presidents Cleveland, Taft, Harding, and
Franklin Roosevelt represented changes in state representation. By contrast, beginning
with the Johnson Administration, no more than 22% (Nixon) of any President’s
appointments have changed state representation. Most have resulted in substantially
fewer changes. President George W. Bush (6%) has the lowest percentage of changes in
state representation since Benjamin Harrison. President Clinton had the fourth-lowest
(11%) percentage. Some Presidents may have been able to compensate a state that “lost”
a seat by appointing a judge from that state to a new seat when an additional judgeship
was created, but no new appellate judgeships have been created since 1990.
Table 1 also shows that changes in state representation have varied by circuit. The
Eleventh Circuit, created from the old Fifth Circuit in 1981,20 has experienced no changes
in state representation. State representation in the Second Circuit has also been very
stable over time. On that circuit, only four of 51 appointments to the court (8%) have
resulted in changes in state representation. By contrast, approximately 30%-40% of
appointments have signaled changes in state representation on the First, Fourth, Eighth,
and Ninth Circuits.


19 Percentages in this section were rounded to the nearest whole number.
20 94 Stat. 1994.

CRS-6
Table 1. Appeals Court Appointments, 1891-2007: Summary of Changes in State Representationstndrdthththththththth
President 1Circuit 2Circuit 3Circuit 4Circuit 5Circuit 6Circuit 7Circuit 8Circuit 9Circuit 10Circuit 11Circuit To t a l
n0 of 10 of 1 (0%)
eland 0 of 11 of 1 0 of 11 of 11 of 10 of 1 3 of 6 (50%)
inley 1 of 10 of 1 0 of 1 1 of 3 (33%)
oosevelt 0 of 30 of 10 of 1 0 of 10 of 21 of 2 1 of 10 (10%)
t0 of 2 2 of 2 1 of 3 1 of 1 4 of 8 (50%)
son1 of 30 of 31 of 31 of 12 of 40 of 10 of 30 of 1 5 of 19 (26%)
ng 0 of 1 1 of 1 1 of 21 of 1 3 of 5 (60%)
idge 0 of 3 2 of 21 of 11 of 20 of 11 of 12 of 2 7 of 12 (58%)
er0 of 2 1 of 11 of 10 of 10 of 10 of 11 of 1 3 of 8 (38%)
iki/CRS-RS22510oosevelt3 of 30 of 23 of 61 of 11 of 21 of 31 of 43 of 32 of 44 of 4 19 of 32 (59%)
g/wman0 of 10 of 10 of 2 0 of 40 of 12 of 30 of 12 of 2 4 of 15 (27%)
s.orenhower0 of 10 of 71 of 12 of 31 of 41 of 42 of 51 of 54 of 72 of 2 14 of 39 (36%)
leaknedy 0 of 1 0 of 11 of 12 of 20 of 20 of 1 3 of 8 (38%)
://wikinson2 of 20 of 20 of 41 of 10 of 50 of 30 of 20 of 30 of 20 of 1 3 of 25 (12%)
httpon0 of 10 of 41 of 71 of 30 of 32 of 40 of 41 of 32 of 41 of 3 8 of 36 (22%)
0 of 3 0 of 10 of 3 0 of 20 of 11 of 2 1 of 12 (8%)
er1 of 1 0 of 10 of 10 of 50 of 4 0 of 12 of 50 of 2 3 of 20 (15%)
an 2 of 50 of 60 of 30 of 50 of 51 of 61 of 53 of 50 of 40 of 27 of 46 (15%)
.W. Bush0 of 40 of 30 of 20 of 22 of 42 of 30 of 11 of 21 of 4 0 of 46 of 29 (21%)
ton0 of 22 of 90 of 50 of 31 of 30 of 41 of 31 of 31 of 140 of 30 of 46 of 53 (11%)
sh0 of 10 of 50 of 70 of 21 of 40 of 70 of 10 of 72 of 70 of 60 of 13 of 48 (6%)
al7 of 23(30%)4 of 51(8%)8 of 49(16%)11 of 27(41%)10 of 48(21%)9 of 50(18%)9 of 41(22%)15 of 45(33%)24 of 64(38%)7 of 26(27%)0 of 11(0%)104 of 435 (24%)
rce: CRS analysis ofZuk, Gary, Deborah J. Barrow, and Gerard S. Gryski. Multi-User Database on the Attributes of United States Appeals Court Judges, 1801-1994 [Computer file]. ICPSR06796-v1.
Zuk, Deborah J. Barrow, and Gerard S. Gryski, Auburn University [producers], 1996. Ann Arbor, MI: Inter-university Consortium for Political and Social Research [distributor], 1997.” Gerard
ryski provided partially updated data to CRS, which made additional modifications. Data are current as of September 4, 2007.
Cell entries reflect the number of appointments that changed state representation on a circuit court of appeals and the number of total appointments that are not to new seats. For President George
ush, Charles Pickering Sr., a Fifth Circuit recess appointee, is included.