Do sitting federal appellate judges who seek elevation to the Supreme Court modify their behavior to enhance their odds of getting the nomination?

This is a question asked in a recent article n the American Journal of Political Science.

The answer - according to the authors - is yes.

- Click here for detail from ScotusBlog:

We examined the voting behavior of “contender judges” and “non-contender judges.” We defined contender judges as sitting federal appellate judges who have strong reason to believe that the president is considering them for elevation. To identify these judges, we looked to the president’s “short lists.” These are lists (formal or otherwise) presidents keep and maintain to identify potential nominees to the Supreme Court should a vacancy arise. These judges may or may not know they are on the short list, but they certainly have strong reason to suspect they are under consideration. Non-contender judges are federal appellate judges who never made a president’s short list.

Our analysis benefited from the fact that the strong norm these days is to nominate Justices who come from a federal court of appeals. Indeed since 1937, nearly half of all Supreme Court nominees were sitting appeals court judges at the time. Since the Reagan presidency, seventy-three percent of all nominees were sitting federal appeals court judges. Knowing this, federal appellate judges have considerable reason to believe they might be under consideration. And, assuming they want the job, there is every reason to believe they will do what they can to be elevated.

We compared the voting behavior of contender judges (a) when there was a vacancy on the Supreme Court versus (b) when there was no vacancy on the Court. Our belief was that if these judges “court” the president and try to signal to him, they should vote differently in vacancy periods (the time between an announced departure on the Court and when the seat is filled) than in non-vacancy periods. (Our results are robust to other windows of time as well.) During vacancies, they should be more likely to vote in line with the president’s ideological position, more likely to vote for the United States as a party, and more likely to write dissenting opinions. They do precisely that. What is more, we observe none of this behavior from non-contender judges.

Consider whether the judge votes in line with the president’s ideological position. Using a matching analysis, we find that contender judges are more likely to vote in line with the president’s ideological position during vacancy periods than during non-vacancy periods. For example, a contender judge during a non-vacancy period has a forty-two-percent predicted probability of voting to support the president’s ideological position, but a fifty-one-percent predicted probability of doing so during a vacancy period. What is important to note here, again, is that these are judges who already made the president’s short list. That they go into “hyper-ideological” mode during vacancies only underscores our point that they are wooing the president.

The data also show that contender judges are more likely to vote in favor of the United States during vacancy periods than they are during non-vacancy periods. A contender judge during a non-vacancy period has a twenty-seven-percent predicted probability of voting in favor of the United States, but a fifty-four-percent predicted probability of doing so during a vacancy period. These judges do so to establish their “team credentials” and bolster their odds of elevation.