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Judicial Selection, Appointments Gridlock, and the Nuclear Option


David S. Law


Washington University in Saint Louis - School of Law; Washington University in Saint Louis - Department of Political Science; Program in Law and Public Affairs, Princeton University

Lawrence B. Solum


Georgetown University Law Center


Journal of Contemporary Legal Issues, Vol. 15, p. 51, 2006
San Diego Legal Studies Paper No. 07-10
U of Illinois Public Law Research Paper Series No. 05-08

Abstract:     
In this paper, we employ simple formal models drawn from political science to explain the occurrence of gridlock in the federal judicial selection process, and to explore the implications of the nuclear option, by which a bare majority of senators employs parliamentary tactics to abolish the filibuster with respect to judicial nominations. Our application of a pivotal politics model leads us to reject the notion that appointments gridlock is a straightforward consequence of divided government. Instead, meaningful changes to the ideological balance of the federal bench require a more demanding ideological alignment of multiple veto players relative to the status quo. This conclusion is confirmed by the recent history of the federal judicial appointments process.

We then adapt the pivotal politics model to the existence of the nuclear option by introducing a new player, the nuclear pivot, who supplies the last vote needed to trigger the nuclear option, and whose precise identity is uncertain - perhaps even to the nuclear pivot herself. Introduction of the nuclear pivot curtails the extent of gridlock and makes possible some change in the status quo, albeit less change than would be possible in the outright absence of the filibuster. We conclude not only that the threat of the nuclear option works to the detriment of the minority Democrats, but also that the Democrats have gained nothing of substance from the agreement reached by a group of moderate senators - the so-called Gang of 14 - that has indefinitely forestalled actual exercise of the nuclear option. However, both uncertainty over the location of the nuclear pivot and the degree to which the Democrats have successfully prolonged the confrontation over judicial nominees may hinder the President from capitalizing upon the advantage otherwise conferred by the threat of the nuclear option.

Number of Pages in PDF File: 55

Keywords: Nuclear option, nuclear pivot, filibuster, gridlock, appointments gridlock, pivotal politics, gang of 14, gang of fourteen, krehbiel, judicial selection, judicial appointments, federal judges, appointment process, appointments process, divided government, veto players

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Date posted: April 14, 2006  

Suggested Citation

Law, David S. and Solum, Lawrence B., Judicial Selection, Appointments Gridlock, and the Nuclear Option. Journal of Contemporary Legal Issues, Vol. 15, p. 51, 2006; San Diego Legal Studies Paper No. 07-10; U of Illinois Public Law Research Paper Series No. 05-08. Available at SSRN: http://ssrn.com/abstract=896421

Contact Information

David S. Law (Contact Author)
Washington University in Saint Louis - School of Law ( email )
Campus Box 1120
St. Louis, MO 63130
United States
314-266-9698 (Phone)
314-935-5356 (Fax)
HOME PAGE: http://www.davidlaw.ca
Washington University in Saint Louis - Department of Political Science ( email )
One Brookings Drive
St. Louis, MO 63130
United States
Program in Law and Public Affairs, Princeton University ( email )
22 Chambers Street
Princeton, NJ 08544
United States
609-258-0162 (Phone)
Lawrence B. Solum
Georgetown University Law Center ( email )
600 New Jersey Avenue, NW
Washington, DC 20001
United States
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