How Uncertainty about Judicial Nominees Can Distort the Confirmation Process

In standard bargaining situations, both parties understand the fundamentals of the agreement. For example, if I offer you a $20 per hour wage, then I will pay you $20 per hour; if I propose a 1% sales tax increase, then sales tax will increase by 1%. But not all such deals are evident. Senate confirmation of judicial nominees is particularly troublesome—the President has a much better idea of the true nominee’s ideology than the Senate does. Indeed, as the Senate votes to confirm or reject, the Senate may very well be unsure what it is buying.

This situation is the center of a new working paper from Maya Sen and myself. We develop a formal model of the interaction between the President and the Senate during the judicial nomination process. At first thought, it might seem as though the President benefits from the lack of information by occasionally sneaking in extremist justices the Senate would otherwise reject. However, our main results show that this lack of information ultimately harms both parties.

To unravel the logic, suppose the President could nominate a moderate or an extremist. Now imagine that the Senate is ideologically opposed, so it only wants to confirm the moderate. The choice to reject is not so simple, though, because the Senate cannot directly observe the nominee’s type but rather must make inferences based on a noisy signal. Specifically, the Senate receives a signal with probability p if the President chooses an extremist. (This signal might come from the media uncovering a “smoking gun” document.) The President suffers a reputation cost if he is caught in this manner. If the President selects a moderate, the Senate receives no signal at all. Thus, upon not receiving a signal, the Senate cannot be sure whether the President nominated a moderate or extremist.

With those dynamics in mind, consider how the President acts when the signal is weak. Can he only nominate an extremist? No–the Senate would obviously always reject regardless of its signal. Can he only nominate a moderate? No–the Senate would respond by confirming the nominee despite the lack of a signal, but the President could then gamble by selecting an extremist and hoping that the weak signal works in his favor. As such, the President must mix between nominating a moderate and nominating an extremist.

Similarly, the Senate must mix as well. If it were to always confirm, the President would nominate extremists exclusively, but that cannot be sustainable for the reasons outlined above. If the Senate were to always reject, the President would only nominate moderates to avoid smoking guns. But then the Senate could confirm the moderates it was seeking.

Thus, both parties mix. Put differently, the President sometimes bluffs and sometimes does not; the Senate sometimes calls what it perceives as bluffs and sometimes lets them go.

These devious behaviors have an unfortunate welfare implication–both parties are worse off than if they could agree to appoint a moderate. Since the Senate mixes, it must be indifferent between accepting and rejecting. The indifference condition means that the Senate receives its rejection payoff in expectation, which is worse than if it could induce the President to appoint a moderate. Meanwhile, the President is also mixing, so he must be indifferent between nominating a moderate and nominating an extremist. But whenever he nominates a moderate, the Senate sometimes rejects. This also leaves the President in worse position than if he could credibly commit to appointing moderates exclusively.

Further, we show that the President and Senate can only benefit from more information about judicial nominees when they are ideologically opposed. And yet there seems to be little serious effort to change the current charade of judicial nominee hearings. (During Clearance Thomas’s hearing, when asked whether Roe v. Wade was correctly decided, he unconvincingly replied that he did not have an opinion “one way or the other.”) Why not?

The remainder of our paper investigates this question. We point to the potential benefits of keeping nominee ideology secret when the Senate is ideologically aligned with the President. Under these conditions, the President can nominate extremists and still induce the Senate to accept. Keeping the process quiet allows the President to nominate such extremists without worrying about suffering reputation costs as a result. Consequently, the current system persists.

Although our focus is on judicial nominations, the same obstacles are likely present in other nominations processes. And coming from an IR background, I have been thinking about similar situations in interstate bargaining. In any case, please check out the paper if you have a chance. We welcome your comments on it.

One response to “How Uncertainty about Judicial Nominees Can Distort the Confirmation Process

  1. Pingback: Robustness Checks in Formal Models | William Spaniel

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