Appointing Extremists

37 Pages Posted: 23 Feb 2015 Last revised: 17 Feb 2016

Date Written: February 19, 2015


Given their long tenure and broad powers, Supreme Court Justices are among the most powerful actors in American politics. The nomination process is hard to predict and nominee characteristics are often chalked up to idiosyncratic features of each appointment. In this paper, we present a nomination and confirmation game that highlights two important features of the nomination process that have received little emphasis in the formal literature. The first is that uncertainty about justice preferences can lead a President to prefer a nominee with preferences more extreme than his preferences. In certain cases, Senators may also be led to prefer extreme nominees, leading to the nomination and confirmation of justices whose preferences seem to diverge from elected officials. The second point is that the President’s closed rule appointing power coupled with Senators valuing certain non-policy attributes of nominees gives the President further resources to successfully appoint preferred nominees, some of whom may be quite extreme. While our focus in this paper is on the Supreme Court, the analysis extends in many ways to multimember administrative agencies as well.

Keywords: Supreme Court, uncertainty, appointments, extremism, Senate confirmation, administrative agency

JEL Classification: K10, K30

Suggested Citation

Bailey, Michael and Spitzer, Matthew L., Appointing Extremists (February 19, 2015). Northwestern Law & Econ Research Paper No. 15-04, Northwestern Public Law Research Paper No. 15-07, Available at SSRN: or

Michael Bailey (Contact Author)

Georgetown University - Department of Government ( email )

ICC, Suite 681
Washington, DC 20057-1034
United States
202-687-6021 (Phone)
202-687-5858 (Fax)

Matthew L. Spitzer

Northwestern University School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States
312-503-8434 (Phone)

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