Court Packing, Senate Stonewalling, and the Constitutional Politics of Judicial Appointments Reform

Abstract

Reforming the Supreme Court is at the center of the political and legal landscape for the first time in generations. The growing gap between the ideological composition of the Court and the democratic will of the electorate, along with perceived procedural irregularities in the appointment of Justices over the last five years, has fueled calls for radical change including expanding the size of the Court. Those calls have in turn triggered renewed efforts to repair the appointments process through term limits and a regularized appointments schedule. But in an age of peaking partisanship, the bipartisan cooperation that would be necessary for that proposal to pass seems far out of reach.

This Article offers a novel path forward. First, it completes the unfinished work of designing a full solution to the broken appointments process by addressing the problem of Senate stonewalling, like that we saw in 2016 when the Republican Senate refused to confirm any nominee put forward by President Obama. It offers the only viable solution to that problem: vesting the appointment power in the President in office at the time the vacancy arises. Second, because that solution would require a constitutional amendment, it analyzes the prospects of achieving that challenging goal through game theory. It offers three models of the parties’ strategic behavior in the face of a cycle of escalation: the Prisoner’s Dilemma, the Hawk-Dove Game, and the Asymmetric Hawk-Dove Game. The analysis shows that the increased salience of escalating constitutional hardball tactics in general alters the incentive structure for the parties in a way that makes judicial appointments reform the winning strategy for both parties. It arrives at the counterintuitive conclusion that in this moment of cratering cooperation and collapsing constitutional norms, there may thus be a rare political and legal opportunity to restructure the judicial appointments process for the better and for good.

Keywords: Constitutional Law; Judicial Appointments; Game Theory