How uncertainty about judicial nominees can distort the confirmation process
| Author | Maya Sen,William Spaniel |
| DOI | 10.1177/0951629815603830 |
| Published date | 01 January 2017 |
| Date | 01 January 2017 |
| Subject Matter | Articles |
Article
Journal of Theoretical Politics
2017, Vol.29(1) 22–47
ÓThe Author(s) 2015
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DOI: 10.1177/0951629815603830
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How uncertainty about
judicial nominees can distort
the confirmation process
Maya Sen
John F KennedySchool of Government, Harvard University,USA
William Spaniel
Center for International Securityand Cooperation, Stanford University, USA
Abstract
Why are judicial nominees allowed to refuse to answer questions about important issues that
could come before the courts? We address this question by examining the information environ-
ment surrounding judicial nominations. Using the Supreme Court as our example, we formulate a
model that departs from the existing literature by incorporating the fact that the Senate often
does not know what type of candidate the President is trying to appoint. Our model shows when
the President and Senate are ideologically divergent, low information about nominees’ views
results in the Senate occasionally rejecting acceptable nominees. However, when the President
and Senate are ideologically close, the President benefits from leaving the process opaque—that
is, allowing his nominees to avoid answering tough questions. Thus, even though low information
can be costly to both parties, keeping the process nontransparent shields the President from
being penalized for selecting more like-minded (and possibly extreme) judges.
Keyword
Judicial politics, Supreme Court,confirmation hearings, appointments
1. Introduction
For most of U.S. history, judicial nominees have refused to answer questions in
public venues. They do so on the grounds that answering questions impugns their
Corresponding author:
Maya Sen, 79 John F KennedyStreet, Cambridge, MA 02138, USA.
Email: maya_sen@hks.harvard.edu
impartiality as jurists and undermines judicial independence. Robert Bork, the
most famous failed Supreme Court nominee, wrote after he was rejected by the
Senate that forcing judicial candidates to answer questions ‘‘effectively compel[s]
nominees to make campaign promises or face the possibility of rejection’’ (Bork,
2009). Clarence Thomas, when asked during his hearings whether Roe v Wade was
correctly decided, replied unconvincingly that he did not have an opinion ‘‘one way
or the other’’ (Nomination of Clarence Thomas, 1991). And Ruth Bader Ginsburg
started her hearings saying she would provide ‘‘no hints, no forecasts, no previews’’
(Nomination of Ruth Bader Ginsburg, 1993).
These responses are typical. Today, nearly all nominees shield their true beliefs
before the Senate and in public hearings. However, why judicial nominees are
allowed to keep private their views on issues likely to come before the courts
remains an open puzzle. Why don’t the President and the Senate come together to
ensure that candidates answer questions? We argue that one explanation behind
this institutional opaqueness comes from the information environment surround-
ing judicial nominations. Using the Supreme Court as our primary example, we
model how the Senate assesses the kind of nominee put forth by the President. We
capture this by departing from the literature and formulating a game of complete
but imperfect information between the President and Senate. More accurately
reflecting the reality noted by legal scholars, we model the President as having
comparably more information about a nominee’s exact ideological, policy, and
legal positions than Senate or the public (Eisgruber, 2009; Lively, 1985), who rely
on comparably weaker signals coming from public hearings and other indirect
channels. The Senate must then decide whether to confirm or reject the nominee.
The model yields three critical insights. First, when the President and Senate are
ideologically distant, the Senate cannot trustthe President to select acceptable mod-
erates in the absence of strong signals. To deter the President from consistently
choosing extremist justices, the Senate sometimes rejects nominees even without
direct evidence that the nominee is unacceptable. The President benefits occasion-
ally from the lack of information, as he may sometimes sneak his most preferred
(i.e., more extreme) choice. However, in expectation, both parties are worse off
under these conditions than if they agreed on a moderate nominee. Second, and as
a direct consequence of the first insight, having political capital hurts the President.
When the President has great political capital, the chance that the signal will reveal
an extremist fails to deter the President from trying to hoodwink the Senate. In
turn, the Senate cannot trust the President to nominate a moderate and responds
by sometimes rejecting unknown moderates. This leaves the President in worse
shape than if the parties simply agreed on a mutually preferable nominee.
Given that the lack of transparency is costly, why aren’t nominees compelled to
address how they would vote on important issues before the Court? Our third
insight provides one answer. When the President and Senate are ideologically close,
the President benefits from leaving the process opaque—that is, allowing his nomi-
nees to avoid answering tough questions. Under such conditions, he knows that
the Senate will confirm his most preferred nominee. However, keeping the process
nontransparent shields the President from suffering reputation costs from selecting
Sen and Spaniel 23
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