How Uncertainty About Judicial Nominees Can Distort the Confirmation Process

With Maya Sen

Abstract: Judicial nominees rarely reveal their genuine views on controversial issues. As a result, political actors—especially the Senate—often have only partial information about how a nominee would vote on issues likely to come before the courts. Using the Supreme Court as an example, we formulate a model that departs from the previous nominations literature by incorporating the fact that the Senate often does not know what kind of candidate the President is trying to appoint. Our model shows that the absence of such information can yield suboptimal outcomes. When the President and Senate are ideologically divergent, low information about nominees’ views results in the Senate occasionally rejecting acceptable nominees. Thus, even though low information allows the President to “sneak in” more extreme candidates, it leads to both the President and the Senate being worse off than they would be with more transparency. Under such conditions, more information weakly increases both sides’ welfare and the President’s welfare is consequently weakly decreasing in his political capital. Our results therefore raise questions about why nominees are permitted to keep important views private before the Senate.

Published in the Journal of Theoretical Politics.

Download Options: Publisher’s Version