Dr. Lee Remington Williams is the Assistant Professor of Political Science and the Pre-Law Program Co-Director at Bellarmine University in Louisville, Kentucky. Williams secured her B.A. in History and Government from Morehead State University, her J.D. from the Brandeis School of Law at the University of Louisville, and her Ph.D. in Judicial Politics from the University of Kentucky. Currently, Williams resides in the Highlands area in Louisville with her husband Bill, and her sons Remi and Ross.
The Importance of Federal Judicial Openings
As part of the doctrine of checks and balances, the U.S. Constitution allows presidents to appoint federal judges with the “advice and consent” of the Senate. From Marbury v. Madison to FDR’s “court-packing” plan, federal judgeships have been at the heart of many of our country’s political fights.
The political maneuvering over the make-up of the federal judiciary continues today. The filibuster has historically been used to block federal court nominees (usually appellate nominees). Through the years, both parties have filibustered judicial nominees they deem undesirable. This tactical procedure has been criticized by both parties (but usually only when that party’s nominees were being filibustered). This reluctant cycle came to an impasse last November when the Senate Democratic majority invoked the so-called “nuclear option” on certain judicial nominees, prohibiting Republican filibuster and calling for a simple majority vote.
Why do presidents and senators go to such great lengths to influence the make-up of federal judiciary? In the aggregate, there is plenty of evidence showing how presidents can impact judicial policy through their federal court nominees, especially since those judges have lifetime appointments. The more federal judge positions presidents fill, the more lasting impact presidents have upon policy. It is no surprise then that presidents attempt to choose judges who share the president’s views.
Senatorial Influence upon the Federal Judiciary
Over time, presidents and senators established a method of choosing desirable federal court candidates through a tradition known as “senatorial courtesy”. Senatorial courtesy refers to a tradition of deference whereby the president (and Senate) will defer to the recommendation of (usually senior) senators from the President’s party within the state when there is a judicial opening (usually district court). For example, if there is a federal district court opening in Vermont, President Obama would defer to the recommendation of Democratic Senator Patrick Leahy, and the Senate would traditionally approve the nominee as a “courtesy.” (Note that this usually only applies when the senator is of the same political party as the president. However, the contentious nature of the political environment today has resulted in some strange bedfellows in order to get certain nominees through.)
What about individual nominations? How much impact could a Senator’s recommendation for one federal district court judgeship really have upon policy?
Kentucky offers a good example of such an impact, though perhaps not the impact that the recommending Senator originally envisioned. In 1992, a federal judgeship opened in the U.S. District Court for the Western District of Kentucky. Pursuant to senatorial courtesy, then-President George H.W. Bush deferred to the recommendation of the senator from his own party in that state, Senator Mitch McConnell. McConnell, the former Jefferson County (Kentucky) Judge-Executive, recommended his former Special Counsel to that office, John G. Heyburn II.
Over the years, Heyburn has garnered a reputation as a moderately conservative judge. Until this year, most would never have accused Judge Heyburn of being a “liberal” judge. However, that all changed on February 12, 2014, when Heyburn ruled that the Commonwealth of Kentucky must recognize same-sex marriages performed in other states. Five months later, Heyburn extended this ruling, holding that Kentucky’s own same-sex marriage ban was unconstitutional. In both decisions, Heyburn relied upon the U.S. Supreme Court’s decision in U.S. v. Windsor, 133 S.Ct. 2675 (2013), where the Court declared that the provision of the Defense of Marriage Act (“DOMA”) defining marriage as between a woman and a man was an unconstitutional violation of the Equal Protection and Due Process Clauses. Judge Heyburn’s decisions have been appealed to the 6th Circuit Court of Appeals, which covers four states – Kentucky, Michigan, Ohio, and Tennessee. In each of these states, a federal judge has ruled in favor of marriage for same-sex couples (albeit under different legal doctrines). The 6th Circuit heard oral arguments from all of these cases in August 2014 and a decision is expected to be issued at any time. Yet, Heyburn is not alone. Many other lower federal court judges, relying upon Windsor, have also overturned gay marriage amendments within their own states.
On October 6, 2014, the U.S. Supreme Court denied seven cert petitions from five states, including Utah, Oklahoma, Virginia, Wisconsin, and Indiana, which sought review of rulings from the Fourth, Seventh, and Tenth Circuits striking down bans on same-sex marriage. By leaving these lower court decisions intact, the denial had the immediate effect of legalizing gay marriage within those states. As it stands today, gay marriage is now completely legal in 32 states. Three other states are subject to federal precedent paving the way toward gay marriage. In eight more states, judges have issued rulings in favor of gay marriage, but these decisions are on hold pending appeal. In Missouri, marriages of same-sex couples legally performed in other states are respected. Because Kentucky’s fate is up in the air pending the 6th Circuit’s decision, it remains one of the 18 states that do not allow gay marriage. If Judge Heyburn’s decision is upheld, however, Kentucky will join the majority of states allowing such.
When it comes to the senator who recommended him, Heyburn’s gay marriage rulings have not gone unnoticed. After Heyburn’s gay marriage decisions, the Senate Conservatives Fund released an ad attacking McConnell for recommending Heyburn to the bench. The ad stated, “Senator McConnell should admit that recommending Judge Heyburn was a mistake that hurt Kentucky….McConnell knew Judge Heyburn was not a conservative, but he promoted him anyway. Now Judge Heyburn is forcing his liberal views on Kentucky”
The 2014 Kentucky Senate Race
It is evident that federal judicial positions are important, so important that legislators and presidents have been wrangling over them since our founding. How much impact can one Senator have upon our judiciary and resulting judicial doctrines? Think of it this way: In each of the gay marriage cases above, many of the judges involved were put into those positions due to recommendations by senators under “senatorial courtesy.” Long-serving senators will have more of an impact over time. Further, if you live in a state where a senator is of the same party as the president for an extended period of time, and those presidents have the opportunity to fill numerous judicial openings, the impact of a recommending senator on judicial policy could be huge.
The 2014 Kentucky Senate race between Democrat Alison Lundergan Grimes and Republican Mitch McConnell has become one of the most watched Senate races in this election cycle. As the leading Senate Republican, McConnell would likely be Senate Majority Leader if the Republicans win back the Senate. Despite his powerful position, however, McConnell appears to be running a tight race with Grimes, the current Kentucky Secretary of State. The Kentucky race has been highlighted across numerous national news sources because of these factors, yet one rarely hears about the potential impact that either could have upon the federal judiciary.
Should Mitch McConnell win, his long-serving status could potentially aid him in nominating even more federal judges under senatorial courtesy, especially if a Republican were to win the presidency again. Further, if the Republicans win the Senate this year and McConnell becomes Majority Leader, he would likely allow Republicans to filibuster the president’s federal court nominees. On the other hand, if Grimes wins, President Obama would likely defer to her (as the only Democratic Senator from Kentucky) for any judicial nominations. However, her lasting impact would be determined by whether the Republicans win the Senate. If they do, there is no guarantee that other senators will continue to extend “senatorial courtesy” in this contentious political environment. And should she win this election, but a Republican win the next presidential election, the president would defer to Rand Paul for nominees instead.
Unfortunately, voters rarely take the judiciary into account when deciding how to vote. It is clear, however, that senators can have a lasting influence upon judicial policy in our country. Thus, you may want to take into account these factors when deciding whether to vote for McConnell or Grimes in this upcoming election.