Legislative diversity and the rise of women judicial nominees in the United States

ABSTRACT

What factors lead U.S. presidents to nominate women to judicial vacancies? We argue that gender diversity within the Senate creates an incentive for the president to select women for judicial positions. We posit two potential reasons for this. First, presidents may assume that women senators care about diversity in the judiciary, potentially creating an easier path for women nominees. Second, the president may view the presence of women in the Senate as a heuristic for public support for women in other areas of politics. Using data on judicial nominations between 1925 and 2020, we find that Senate gender composition is associated with a higher probability of a woman nominee being selected for a judicial vacancy. These findings have implications for women in politics, diversifying institutions, and nomination strategies pursued by presidents.

KEYWORDS:

• Judicial nominations
• Federal Courts‌
• representation
• Women and politics
• Gender politics ‌

Acknowledgments

The authors would like to thank David Hughes, Jessica Schoenherr, and the anonymous reviewers for their helpful feedback and suggestions. They are also grateful to Jonathan King for generously sharing data.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 https://www.nytimes.com/2021/12/18/us/politics/biden-judges-reagan-record.html.

2 https://www.washingtonpost.com/politics/interactive/2021/biden-judge-diversity/.

3 https://www.pewresearch.org/fact-tank/2018/10/02/trump-has-appointed-a-larger-share-of-female-judges-than-other-gop-presidents-but-lags-obama/.

4 See Badas and Stauffer (2023).

5 The FJC's database includes only nominees who are confirmed. However, the FJC maintains a list of nominees who were not confirmed, which we use to identify the gender of unconfirmed nominees. Thus, our data includes all nominees.

6 Nominees from the Hoover administration are excluded; Hoover does not have a DW-Nominate score.

7 King, Ostrander, and Schoenherr (2024) also show that when a blueslip holding Senator is a woman, the president is more likely to nominate a woman. Blueslips are a norm in the context of judicial nominations. This means that the full Senate will typically defer to the views of the senators from states where a nominee will be seated (Binder 2007). If a home state senator opposes a nominee, this in most cases is enough to delay or defeat confirmation of a nominee (Binder 2007). Considering the power granted to home state senators, presidents may strategically nominate women when a member of the nominee's home state senator delegation is a woman. In the appendix we test the robustness of our main finding by adding an additional control for whether one of the home state senators is a woman. Due to data availability, we analyze nominations between the 97th and 116th Congress. The results to these analyses show our key result is robust to including a control for whether the home state delegation includes a female senator.

8 The results are substantively similar whether we use Democratic control of the Senate or total number of Democratic senators.