Why Nuclear Disarmament May Be Easier to Achieve than an End to Partisan Conflict Over Judicial Appointments

26 Pages Posted: 2 Nov 2006

See all articles by David S. Law

David S. Law

The University of Hong Kong - Faculty of Law; University of California, Irvine School of Law

Sanford Levinson

University of Texas Law School

Abstract

What do nuclear competition and federal judicial selection share in common? Both involve strategic interactions that lend themselves to analysis from the perspective of game theory. From such a perspective, we offer an explanation of why partisan conflict and gridlock over appointments to the federal bench is likely to remain intractable.

Game theory teaches us that, whether the game is one of nuclear disarmament or judicial selection, the prospects for long-term cooperation depend upon the ability of the players to detect uncooperative behavior and to retaliate promptly. To an unusual degree, the process by which federal judges are appointed is characterized by obstacles to effective retaliation that make enduring cooperation difficult to achieve. As a result, agreements between Republicans and Democrats over the treatment of judicial nominees may be even harder to enforce than agreements between competing superpowers to reduce their nuclear stockpiles.

We conclude by discussing the conditions under which strategically minded political actors might choose to pursue the "nuclear option," by which a simple majority vote of the Senate would end the use of filibusters against judicial nominees.

Keywords: judicial appointments, judicial selection, judicial behavior, federal courts, prisoner's dilemma, game theory, nuclear option, federal judiciary, filibuster

Suggested Citation

Law, David S. and Levinson, Sanford V., Why Nuclear Disarmament May Be Easier to Achieve than an End to Partisan Conflict Over Judicial Appointments. University of Richmond Law Review, Vol. 39, p. 923, 2005, U of Texas Law, Public Law Research Paper No. 111, San Diego Legal Studies Paper No. 07-80, Available at SSRN: https://ssrn.com/abstract=941911

David S. Law (Contact Author)

The University of Hong Kong - Faculty of Law ( email )

Pokfulam Road
Hong Kong, Hong Kong
China

HOME PAGE: http://www.davidlaw.ca

University of California, Irvine School of Law ( email )

401 E. Peltason Dr.
Ste. 1000
Irvine, CA 92697-1000
United States

Sanford V. Levinson

University of Texas Law School ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States
512-471-3273 (Phone)

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