Storable votes and judicial nominations in the US Senate
| DOI | 10.1177/0951629816630437 |
| Author | Alessandra Casella,Gregory Wawro,Sébastien Turban |
| Date | 01 April 2017 |
| Published date | 01 April 2017 |
| Subject Matter | Articles |
Article
Storable votes and judicial
nominations in the US Senate
Journal of Theoretical Politics
2017, Vol. 29(2) 243–272
©The Author(s) 2017
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DOI:10.1177/0951629816630437
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Alessandra Casella
Department of Economics, Columbia University, and NBER, USA; CEPR, UK
Sébastien Turban
Department of Economics, Columbia University, USA
Gregory Wawro
Department of Political Science, Columbia University, USA
Abstract
We model a procedural reform aimed at restoring a proper role for the minority in the confir-
mation process of judicial nominations in the US Senate. We propose that nominations to the
same level court be collected in periodic lists and voted upon individually with storable votes,
allowing each senator to allocate freely across the list a fixed number of total votes. Although
each nomination is decided by simple majority, storable votes make it possible for the minority
to win occasionally, but only when the relative importance its members assign to a nomination is
higher than the relative importance assigned by the majority. Numerical simulations approximate
the composition of the 113th and 114th Senates. Under plausible assumptions motivated by a
game theoretic model, we find that a minority of 45 senators would be able to win about 20
percent of confirmation battles when the majority party controls the presidency, and between 40
and 60 percent when the president identifies with the minority party. For most parameter values,
the possibility of minority victories increases aggregate welfare.
Keywords
U.S. Senate; filibuster; storable votes; minority representation
Corresponding author:
Gregory Wawro, Columbia University, Department of Political Science, 420 West 118th Street, New York,
NY 10027, USA.
Email: gjw10@columbia.edu
244 Journal of Theoretical Politics 29(2)
1. Introduction
In November 2013, a majority of the Senate exercised a parliamentary maneuver to
impose majority cloture for all executive branch and judicial nominations below the
Supreme Court level, effectivelyeliminating filibusters of such nominations. The maneu-
ver (colloquially known as the nuclear option) followed a decade-long battle over the
obstruction of nominees to the federal judiciary. It had been threatened at various times
by alternating partisan majorities but had not been executed, in part because of concerns
about imposing majority rule in an institution accustomed to rule by supermajorities, if
not by consensus.
Its effects were immediate and, up to the time of writing, predictable. In 2014, Pres-
ident Obama and the Democratic majority in the Senate succeeded in confirming 89
federal judges, the highest single-year total in 20 years. After the Republicans took over
as the majority party in the Senate, the pace of confirmations slowed sharply. The first
four months of 2015 saw only two confirmations of judicial nominees, compared, for
example, to 15 when Democrats controlled the Senate in the first quarter of 2007, the
start of George W. Bush’s last two years in office.1Although the newmajoritarian regime
left many of the minority’s procedural prerogatives intact,2the shift in power in favor of
the majority party seems clear in the data.
But we should pause to ask whether or not it is desirable to make the Senate a
purely majoritarian institution, both with respect to outcomes and in terms of the political
philosophy guiding the design of American democratic institutions.3
In line with a long literature (e.g. McGann, 2004), this paper starts from the premise
that the minority has a legitimate, important role in confirming nominations. The expres-
sion of intense sentiment by the minority once figured prominently in filibuster battles
and was valued by the majority because it provided an informative signal about public
opinion (Wawroand Schickler, 2006). Yetthe power of the minority should not trump the
majority’s right to govern; it should consist in the institutional recognition of principled
support or opposition to specific nominees. The abuse of the filibuster in recent years,
employed by both parties primarily as a tool for obstruction, makes clear that a differ-
ent set of procedures is needed. The puzzle then is how to design transparent, formal
institutions that balance the minority’s right to be heard with the majority’s right to rule.
We contend that a solution to this puzzle does exist—one that should appeal to sen-
ators whether they are in the majority or the minority party. The reform that we explore
offers to the parties a mechanism to reveal the salience of their preferences and grants the
minority the power to prevail on some nominations, but only on those that the minority
considers a higher priority than the majority does. It effectivelyinstitutionalizes the mode
of conflict resolution that the Senate has embraced throughout much of its history.
Specifically, we investigate how the Senate could employ storable votes to confirm
or reject judicial nominees on slates submitted to the chamber. Storable votes is a voting
system that endows voters with a fixed number of total votes, but lets them distribute
the votes freely over different decisions (Casella, 2012). Each decision is then made
according to the majority of votes cast. When applied to a slate of nominees, storable
votes allow the minority to concentrate its votes on specific nominees, and thus make it
possible for the minority to prevail on a fraction of the slate; however this is at the cost
of casting fewer votes on the remaining names, thus letting the majority prevail on those.
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