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: 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: https://ssrn.com/abstract=2568129 or http://dx.doi.org/10.2139/ssrn.2568129