This paper argues that the expansion of the White House's role in judicial appointments since the late 1970s, at the expense of the Senate, has contributed to heightened levels of ideological conflict and gridlock over the appointment of federal appeals court judges, by making a cooperative equilibrium difficult to sustain. Presidents have greater electoral incentive to behave ideologically, and less incentive to cooperate with other players in the appointments process, than do senators, who are disciplined to a greater extent in their dealings with each other by the prospect of retaliation over repeat play. The possibility of divided government exacerbates the difficulty of achieving cooperative equilibrium by making both the benefits of cooperative behavior and the costs of retaliation highly uncertain.
Judges | Jurisdiction | Jurisprudence | Law | Law and Society | Legal Profession | Public Law and Legal Theory
Date of this Version
David S. Law, "Appointing Federal Judges: The President, the Senate, and the Prisoner's Dilemma" (September 2004). University of San Diego Public Law and Legal Theory Research Paper Series. Working Paper 24.