Now or later? A dynamic analysis of judicial appointments
| DOI | 10.1177/0951629816630433 |
| Published date | 01 January 2017 |
| Date | 01 January 2017 |
| Author | Jinhee Jo |
| Subject Matter | Articles |
Article
Now or later? A dynamic
analysis of judicial
appointments
Journal of Theoretical Politics
2017, Vol. 29(1) 149–164
©The Author(s) 2016
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DOI:10.1177/0951629816630433
jtp.sagepub.com
Jinhee Jo
Department of Political Science, Kyung Hee University, Korea
Abstract
Observing substantial variations in Senate confirmation durations, existing studies have tried to
explain when the Senate takes more or less time to confirm presidential nominees. However,
they have largely ignored the president’s incentives to nominate someone who he expects will
be delayed and do not specify conditions under which delay occurs. To improve on existing
literature, I develop a dynamic model of presidential appointments in which the Senate decides
whether to delay as well as whether to confirm the nominee. The model shows that the president
rationally chooses a nominee who he expects the Senate will delay if the status quo belongs to a
certain interval in a one-dimensional policy space. Moreover, the president sometimes chooses a
nominee who may fail to gain confirmation after a delay. Finally, the effects of important factors
on expected confirmation duration are analyzed: most interestingly, as presidential popularity
increases, the Senate takes longer to confirm the nominee.
Keywords
Interbranch bargaining; judicial appointments; confirmation duration
1. Introduction
“The judiciary depends not only on funding, but on the judges, to carry out that mission....
Over many years, however, a persistent problem has developed in the process of filling
judicial vacancies. Each political party has found it easy to turn on a dime from decrying
to defending the blocking of judicial nominations, depending on their changing political
fortunes” (Roberts, 2010: 7).
As the above quote indicates, the Senate often does not act quicklyto confir m judicial
nominees despite the urgency of filling vacancies. When Chief Justice Roberts wrote the
year-end report in which this quote appears, 96 of the 876 Article III judgeships in the
Corresponding author:
Jinhee Jo, Department of Political Science, Kyung Hee University, 26 Kyungheedae-ro Dongdaemun-gu Seoul
02447, Korea.
Email: jinheejo@khu.ac.kr
150 Journal of Theoretical Politics 29(1)
Federal Judiciary were vacant. His predecessor, William Rehnquist, expressed a similar
concern more than 10 years earlier, writing in his 1998 annual report that “vacancies
cannot remain at such high levels indefinitely without eroding the quality of justice”
(Rehnquist, 1998).
However, while numerous vacancies are a result of confirmation delays, some nom-
inations are processed quickly. For example, Evan Wallach was nominated by President
Barack Obama on 28 July 2011, to the US Court of Appeals for the Federal Circuit. He
was confirmed 99–0 by the Senate about three months later on 8 November 2011. His
confirmation was quick, considering that the average duration of the confirmation pro-
cess for Obama’s appellate court nominees was 258 days, as of August 2015. Observing
such variation in the duration of the confirmation processes raises the following ques-
tion: why are some nominations confirmed quickly while others wait for months, or even
years, to be confirmed?
Existing studies suggest various conditions under which delay occurs. First, ideo-
logical disagreement between the president and the Senate may cause delays. When the
ideological gap between the president and the Senate is large, the president is less likely
to make a nomination which the Senate prefers to the status quo. Thus, the Senate might
be reluctant to confirm the nomination swiftly (McCarty and Razaghian, 1999; Primo
et al., 2008; Shipan and Shannon, 2003). Second, senators may block nominations to
gain leverage in bargaining over other policy issues, such as legislative bills, the budget,
executive branch acts, or another appointment (Binder and Maltzman, 2002; Console-
Battilana and Shepsle, 2009; Goldman, 1997; Shipan and Shannon, 2003). Third, the
Senate may take more time to make its decision if the nominee is underqualified (Epstein
et al., 2006; Martinek et al., 2002). Finally, the Senate may sometimes use delay as a
purposeful strategy to defeat presidential nominees (Bell, 2002; Bond et al., 2009).
Although previous studies have provided valuable insights into why delay occurs,
some unanswered questions remain. First, studies havetended to focus on the reasons the
Senate delays its decision, while ignoring the fact that it is the president who made the
nomination which he probably expected to be delayed. Is delay unavoidableunder cer tain
conditions such as severe ideological conflicts between the president and the Senate, or
the court with vacancies being ideologically balanced? Or, is it the president’s strategic
choice to achieve his policy goal?
Second, whydo some nominations fail to gain confirmation after a long delay? In the
literature on bargaining, the most common explanation for delays or bargaining failures
is asymmetric (or private) information between players (e.g. Admati and Perry, 1987;
Kennan and Wilson, 1990; see also Hollibaugh, 2015). However, uncertainties on pref-
erences are likely not the main cause in this situation because the president sometimes
nominates the same individual repeatedly even when the Senate had enough time previ-
ously to consider the nomination but did not take an action on it intentionally. From 2005
to 2014, there were 94 appellate court nominees. Among them, 15 candidates were nom-
inated three times or more, seven of the 15 nominees were eventually confirmed, and the
rest failed to gain confirmation. If the issue is not his uncertainty about the Senate’s pref-
erence, what incentives drive the president to submit nominations he knows the Senate
will likely not favor?
Third, while previous studies suggest that the president sometimes chooses moderate
nominees to gain a quicker confirmation (McCarty and Razaghian, 1999), it is not clear
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