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Article
Appointing Federal Judges: The President, the Senate, and the Prisoner's Dilemma
Cardozo Law Review (2005)
  • David S Law, University of San Diego School of Law
Abstract

This article argues that the expansion of the White House's role in judicial appointments since the late 1970s, at the expense of the Senate, has contributed to heightened levels of ideological conflict and gridlock over the appointment of federal appeals court judges, by making a cooperative equilibrium difficult to sustain. Presidents have greater electoral incentive to behave ideologically, and less incentive to cooperate with other players in the appointments process, than do senators, who are disciplined to a greater extent in their dealings with each other by the prospect of retaliation over repeat play. The possibility of divided government exacerbates the difficulty of achieving cooperative equilibrium by making both the benefits of cooperative behavior and the costs of retaliation highly uncertain.

Keywords
  • judicial appointments,
  • judicial selection,
  • federal judges,
  • prisoner's dilemma,
  • federal appointments process,
  • filibuster,
  • blue slip,
  • senatorial courtesy,
  • game theory
Disciplines
Publication Date
January, 2005
Citation Information
David S Law. "Appointing Federal Judges: The President, the Senate, and the Prisoner's Dilemma" Cardozo Law Review Vol. 26 Iss. 2 (2005)
Available at: http://works.bepress.com/david_law/9/