Now or later? A dynamic analysis of judicial appointments

Abstract

Observing substantial variations in Senate confirmation durations, existing studies have tried to explain when the Senate takes more or less time to confirm presidential nominees. However, they have largely ignored the president’s incentives to nominate someone who he expects will be delayed and do not specify conditions under which delay occurs. To improve on existing literature, I develop a dynamic model of presidential appointments in which the Senate decides whether to delay as well as whether to confirm the nominee. The model shows that the president rationally chooses a nominee who he expects the Senate will delay if the status quo belongs to a certain interval in a one-dimensional policy space. Moreover, the president sometimes chooses a nominee who may fail to gain confirmation after a delay. Finally, the effects of important factors on expected confirmation duration are analyzed: most interestingly, as presidential popularity increases, the Senate takes longer to confirm the nominee.

Keywords

Interbranch bargaining judicial appointments confirmation duration

1. Introduction

“The judiciary depends not only on funding, but on the judges, to carry out that mission…. Over many years, however, a persistent problem has developed in the process of filling judicial vacancies. Each political party has found it easy to turn on a dime from decrying to defending the blocking of judicial nominations, depending on their changing political fortunes” (Roberts, 2010: 7).

As the above quote indicates, the Senate often does not act quickly to confirm judicial nominees despite the urgency of filling vacancies. When Chief Justice Roberts wrote the year-end report in which this quote appears, 96 of the 876 Article III judgeships in the Federal Judiciary were vacant. His predecessor, William Rehnquist, expressed a similar concern more than 10 years earlier, writing in his 1998 annual report that “vacancies cannot remain at such high levels indefinitely without eroding the quality of justice” (Rehnquist, 1998).

However, while numerous vacancies are a result of confirmation delays, some nominations are processed quickly. For example, Evan Wallach was nominated by President Barack Obama on 28 July 2011, to the US Court of Appeals for the Federal Circuit. He was confirmed 99–0 by the Senate about three months later on 8 November 2011. His confirmation was quick, considering that the average duration of the confirmation process for Obama’s appellate court nominees was 258 days, as of August 2015. Observing such variation in the duration of the confirmation processes raises the following question: why are some nominations confirmed quickly while others wait for months, or even years, to be confirmed?

Existing studies suggest various conditions under which delay occurs. First, ideological disagreement between the president and the Senate may cause delays. When the ideological gap between the president and the Senate is large, the president is less likely to make a nomination which the Senate prefers to the status quo. Thus, the Senate might be reluctant to confirm the nomination swiftly (McCarty and Razaghian, 1999; Primo et al., 2008; Shipan and Shannon, 2003). Second, senators may block nominations to gain leverage in bargaining over other policy issues, such as legislative bills, the budget, executive branch acts, or another appointment (Binder and Maltzman, 2002; Console-Battilana and Shepsle, 2009; Goldman, 1997; Shipan and Shannon, 2003). Third, the Senate may take more time to make its decision if the nominee is underqualified (Epstein et al., 2006; Martinek et al., 2002). Finally, the Senate may sometimes use delay as a purposeful strategy to defeat presidential nominees (Bell, 2002; Bond et al., 2009).

Although previous studies have provided valuable insights into why delay occurs, some unanswered questions remain. First, studies have tended to focus on the reasons the Senate delays its decision, while ignoring the fact that it is the president who made the nomination which he probably expected to be delayed. Is delay unavoidable under certain conditions such as severe ideological conflicts between the president and the Senate, or the court with vacancies being ideologically balanced? Or, is it the president’s strategic choice to achieve his policy goal?

Second, why do some nominations fail to gain confirmation after a long delay? In the literature on bargaining, the most common explanation for delays or bargaining failures is asymmetric (or private) information between players (e.g. Admati and Perry, 1987; Kennan and Wilson, 1990; see also Hollibaugh, 2015). However, uncertainties on preferences are likely not the main cause in this situation because the president sometimes nominates the same individual repeatedly even when the Senate had enough time previously to consider the nomination but did not take an action on it intentionally. From 2005 to 2014, there were 94 appellate court nominees. Among them, 15 candidates were nominated three times or more, seven of the 15 nominees were eventually confirmed, and the rest failed to gain confirmation. If the issue is not his uncertainty about the Senate’s preference, what incentives drive the president to submit nominations he knows the Senate will likely not favor?

Third, while previous studies suggest that the president sometimes chooses moderate nominees to gain a quicker confirmation (McCarty and Razaghian, 1999), it is not clear when the president might make such choices. What are the conditions under which the president makes ideological compromises to gain quicker confirmations? What makes the president rationally give up potential policy gains and aim for faster policy changes instead?

To answer these questions, I develop a dynamic model of presidential appointments. To capture the dynamic feature of the confirmation process, there are two periods with two players, the president and the Senate. In the model, after the president chooses a nominee, the Senate first decides whether to make its final decision in the first or the second period and then decides whether to confirm at the decided period. The Senate pays some costs if it does not confirm the nomination, the magnitude of which, it is assumed, is positively correlated with the president’s popularity (Krutz et al., 1998; Bond et al., 2009; Johnson and Roberts, 2004).

Following the insights from existing literature, the model incorporates the incentives for the Senate to delay nomination in order to gain leverage when bargaining over other policy issues, such as other appointments, legislative bills, the budget, or executive branch acts (Binder and Maltzman, 2002; Console-Battilana and Shepsle, 2009; Goldman, 1997; Shipan and Shannon, 2003). Indeed, plentiful anecdotal evidence suggests such a motivation for delay. First, in many cases, nominations are delayed for a long time without good reason and then confirmed unanimously. For example, Albert Diaz of North Carolina was unanimously confirmed to the Fourth Circuit after about 13 months of delay. Why did the Senate delay so long if no one opposed the nomination? A potential reason is that the Senate waited until an additional bargaining opportunity arose. Second, the president often renominates the same individual who failed to gain confirmation in the previous Senate, even when the new Senate is more hostile. Surprisingly, however, sometimes these individuals gain confirmation by the new Senate. For example, James L. Dennis was first nominated by President Clinton during the 103rd Congress in which the Democratic party occupied 57 seats of 100 in the Senate. However, he failed to gain confirmation by the end of the 103rd Congress. Clinton renominated him in the 104th Congress in which the Democratic party had only 47 seats. Interestingly, the nomination was successfully confirmed after eight months. Finally, senators sometimes hold dozens or even hundreds of nominees hostage until their demands are satisfied. On April 13, 2011, for example, Republican Senator Lindsey Graham vowed to block President Obama’s judicial nominations over $40,000 in port funding. In the end, Majority Leader Harry Reid had to promise to provide the money to escape the threat. All these incidents indicate that confirmation delays are not exclusively about ideology. The Senate has incentives to delay confirmation in some cases, hoping for an additional gain from bargaining on other issues. To get his nominees confirmed, the president may sometimes make concessions.

To incorporate the Senate’s incentives to block nominations for additional bargaining gains, I assume that if a decision is delayed until the second period, there is a positive probability that the Senate will gain policy concessions from the president in exchange for confirmation. By incorporating the possibility of future bargaining opportunities in the model, I can systematically analyze how this affects the president’s choice of nominees and the Senate’s decision.

The model produces several important results. First, the president rationally chooses a nominee who the Senate will surely delay if the status quo belongs to a certain interval specified subsequently. In particular, the president chooses policy gain over quicker confirmation when the status quo is not too far from his ideal point. Moreover, the president sometimes chooses a nominee who may fail to gain confirmation after a delay. Specifically, in equilibrium, the Senate may receive a nomination that it will confirm only if there is an additional bargaining benefit. Thus, the nomination will fail with the probability that such a bargaining opportunity does not take place. Finally, I analyze the effects of important factors on expected confirmation duration: most interestingly, the more popular the president is, the longer it takes for the Senate to confirm the nominee. Although it may seem counter-intuitive, the model shows that the president is less likely to make ideological compromises as his popularity increases. As a result, the Senate is more likely to be reluctant to confirm the nomination.

2. Model

2.1. Setup

Two players, the president (P) and the Senate (S), play a two-period appointment game. The policy space $X = [X_{1}, X_{2}]$ is a closed interval on the real line. Let $p \in X$ and $s \in X$ denote the president’s and the Senate’s ideal points, respectively. I assume that the players’ policy utilities decrease as the absolute distance between the players’ ideal points and the policy outcome increases. Formally, each player’s instantaneous utility from a policy outcome is defined as

- | x - i |,

where $x \in X$ is a policy and $i \in {s, p}$ is each player’s ideal point.

There are two periods, $t = 1, 2$ .¹ At $t = 1$ , a status quo $q \in X$ is given, and the president first chooses a nominee. The nominee with ideal point $x \in X$ is denoted by $N_{x}$ . Assume that there is a wide enough pool of potential nominees such that the president can choose any $x \in X$ that he wants.

After the president makes a nomination, the Senate decides whether to delay its decision to the next period or not. If it decides not to delay, it confirms or rejects the nomination. If it delays its decision until $t = 2$ , a utility transfer of B from the president to the Senate occurs if the Senate confirms the nomination.² Assume that B is $b (x)$ with probability $λ \in (0, 1)$ , where $b (x) = α (- | x - p | + | q - p |)$ , $α \in (0, 1),$ and $0$ with probability $1 - λ$ . Only the probability distribution is known to the players in the first period. Thus, when choosing his nominee, the president does not know for certain whether he needs to lose additional utilities in case the Senate confirms the nominee in the second period. Likewise, when deciding whether to delay, the Senate does not know whether it can obtain higher utility by delaying. The value of B is realized and observed by all players at the beginning of the second period. After observing B, the Senate either decides to confirm or reject the nominee or does nothing. If the Senate takes no action in the second period, the nomination is returned to the president.

The random variable B captures the concession the president may need to make in other policy areas to get his nominee confirmed. As mentioned previously, by dragging out the confirmation process, the Senate may benefit when bargaining with the president over legislative bills, the budget, executive branch acts, and other appointments (Shipan and Shannon, 2003). The president would make concessions to the extent that the new appointment is still beneficial to him. Specifically, if the new appointment brings a policy outcome which is just as good as the status quo, the president would not want to concede anything more. On the contrary, if the new appointment is going to bring much better policy outcomes to the president, he would be willing to give up more. To reflect this, $b (x)$ is assumed to be a portion of the president’s ideological gain from the new appointment. The term $- | x - p | + | q - p |$ represents how much closer the new policy outcome is to the president than the status quo. Thus, the Senate’s additional bargaining gain, $b (x) = α (- | x - p | + | q - p |)$ , with $α \in (0, 1),$ varies depending on how beneficial the new appointment is to the president. The parameter $α$ is assumed to be smaller than one, which means that this additional bargaining does not absorb all the president’s gain; it is still beneficial for him to get his nominee confirmed even with this sidepayment.³ Note that the Senate does not block presidential nominees indiscriminately because such behavior incurs political costs. A good bargaining opportunity, which can be supported by the constituents, does not occur all the time. Therefore, it is reasonable to assume that the utility transfer of B is zero with positive probability.

The Senate pays some political costs c for rejecting a presidential nominee in any period, and $θ c$ , with $θ \in (0, 1)$ , for killing the nomination by doing nothing in the second period. Defeating a presidential nominee is costly for the Senate, especially when the president is popular (Krutz et al., 1998; Bond et al., 2009; Johnson and Roberts, 2004).⁴ The parameter $θ$ reflects that the political cost of defeating a nominee by taking no action tends to be lower than that of rejecting a nominee publicly (i.e., voting it down on the floor) because of the weak salience of the issue in the public eye. Thus, the Senate never rejects a nominee by a floor vote in equilibrium. Rather, if it does not want to confirm a nomination, it takes no action in the second period because it is less costly than voting it down. This is perfectly consistent with reality, as thus far no appellate court nominees have been rejected by a full floor vote.

After the nomination is confirmed, the policy outcome is realized at the nominee’s ideal point x.⁵ If the confirmation fails, the status quo q is maintained. Players get their policy utility at each period and discount their future utilities with discount rate $δ \in (0, 1)$ .⁶

2.2. Results

In this subsection, I present the results of the model. The solution concept is Subgame Perfect Equilibrium. Despite the simple structure of the game, the equilibrium is rich enough to show how dynamic considerations affect players’ optimal choices. The president has an incentive to avoid a delay to get immediate policy gains. However, he may be willing to wait if he can gain a lot more in the future. On the other hand, the Senate has an incentive to delay its decision to attain an additional bargaining benefit. If the president’s choice is much better than the status quo, however, the Senate may want to confirm the nominee without delay for immediate policy gains. In equilibrium, both players behave optimally by considering their dynamic utilities. As I show later in this section, since both explicitly take into account the effect of delay on their utilities, the conditions for delay can be clearly specified by analyzing their equilibrium strategies.

Without loss of generality, I assume that the Senate’s ideal point is at zero (i.e., $s = 0$ ) and that the president is more conservative than the Senate (i.e., $0 < p$ ). In addition, I assume that the status quo is not at the president’s ideal point, i.e.,

q \neq p .

This assumption about the status quo rules out multiple equilibrium paths. Since the set ${q | q = p}$ has Lebesgue measure zero, it does not affect the main results of the model. In addition, for simplicity, I assume several tie-breaking rules to structure the president’s action when he is indifferent among multiple choices. The tie-breaking assumptions are formally stated in the appendix, and removing these assumptions does not change the qualitative results of the model.

As is typical in finite sequential games, this game can be solved using backward induction. For a complete description of the equilibrium, the players’ contingency plans in every subgame should be specified. However, for practical purposes, it is sometimes safe to ignore subgames that are never reached in equilibrium. In this game, the president never chooses x in some ranges, and the Senate’s response for such x has no important substantive meaning. Thus, in the rest of the paper, I ignore some of these subgames that are never reached on the equilibrium path. Proposition 2.1 formally states the range of x that the president might choose in equilibrium.

Proposition 2.1. In equilibrium, the president’s choice of x satisfies $b (x) \geq 0$ and $x \in [0, p]$ .

See the online appendix for proofs of all propositions. Note that Proposition 2.1 states that $b (x) = α (- | x - p | + | q - p |) \geq 0$ , which implies that the president never makes an appointment that harms his utility. Moreover, this means that the utility transfer B is always non-negative in equilibrium. Thus, the Senate sometimes has an incentive to delay to obtain this additional gain. Although the president may lose $b (x)$ additionally from Senate delay, the new appointment is always beneficial to him because he can still get a policy gain of $(1 - α) (- | x - p | + | q - p |) \geq 0$ .

I now begin with the Senate’s strategy. The Senate prefers a nominee who is ideologically proximal. As the Senate’s expected utility is continuous in the nominee’s ideal point, it is natural for the Senate to use a threshold strategy in equilibrium. Proposition 2.2 summarizes the Senate’s equilibrium strategy. As mentioned previously, the Senate’s strategy is described only for x such that $0 < x < p$ and $b (x) \geq 0$ . The following will be used for the rest of the paper:

\begin{matrix} D_{1} = \frac{1}{1 + δ λ α} (| q | - δ λ α (- p + | q - p |)) \\ D_{2} = | q | + θ c \\ D_{3} = \frac{1}{1 - α} (| q | + θ c + α (- p + | q - p |)) . \end{matrix}

(1)

Note that $D_{1} < D_{2} < D_{3}$ .

Proposition 2.2. On any equilibrium paths in which the president nominates $N_{x}$ , the Senate

\begin{matrix} c o n f i r m s N_{x} a t t = 1 & i f & x \leq D_{1} \\ c o n f i r m s N_{x} a t t = 2 & i f & D_{1} < x \leq D_{2} \\ c o n f i r m s N_{x} a t t = 2 i f B = b (x) a n d d o e s n o t h i n g o t h e r w i s e & i f & D_{2} < x \leq D_{3} \\ d o e s n o t h i n g a t t = 2 & i f & D_{3} < x . \end{matrix}

Figure 1 illustrates an example of the Senate’s decision. If the nominee’s ideal point x is closer than the first threshold $D_{1}$ , the Senate promptly confirms the nomination. Depending on the position of the status quo, $D_{1}$ is equal to the status quo or is much closer than the status quo to the Senate’s ideal point. If the Senate strongly prefers the nominee’s ideological position to the status quo, it will not wait until the second period even if waiting might bring the additional bargaining gain $b (x)$ . Since the decision to delay affects its policy utility at $t = 1$ , it is too costly to delay confirmation if the nomination greatly improves its policy utility. The Senate also confirms the nomination swiftly when the additional bargaining gain $b (x)$ is very small, even if the nominee’s ideal point x is not much closer than the status quo to the Senate’s own ideal point. If the Senate knows that the president will concede nothing for the confirmation, there is no reason to delay. As in the example in Figure 1, if the nominee’s ideal point is at the status quo, the Senate does not gain anything by delaying because the president will rather give up the nomination than yield something additionally. Therefore, it is optimal to confirm at $t = 1$ in this case, although the new policy outcome is not strictly better than the status quo.

Figure 1.

Example of Senate’s decision. (Note: assumes s (the Senate’s ideal point) =0, p (the president’s ideal point) =1, q (the status quo) $= 0.1,$ $λ = 0.7$ , $α = 0.6$ , $δ = 0.9$ , and $θ c = 0.35$ .)

Next, if the nominee’s ideal point x is farther than the first threshold $D_{1}$ but closer than the second threshold $D_{2}$ , the Senate waits and confirms the nominee in the second period. In this case, the Senate intends to confirm the nomination eventually because of the cost for defeating it but postpones the decision to potentially use the nomination as leverage in another bargaining opportunity.

If the nominee is ideologically more extreme than $D_{2}$ and more moderate than $D_{3}$ , the Senate waits until the second period and confirms the nomination only if it can gain the additional bargaining benefit $b (x)$ . In this case, the Senate strictly prefers rejecting the nomination to confirming it at $t = 1$ , but is not certain about its decision in the future. This occurs when it prefers maintaining the status quo if $B = 0$ , but prefers confirming x if $B = b (x) > 0$ . At $t = 1$ , the Senate does not know whether there will be an additional bargaining opportunity in the next period. Because it is uncertain about the future opportunity, it has an incentive to wait until the next period rather than deciding immediately whether to confirm. This is what Kreps (1979) labels as a preference for flexibility. The Senate wants to keep the right to choose until the next period because of its uncertainty about B.

Finally, if the nominee’s ideal point is much farther from the Senate’s ideal point s than the status quo, then the Senate delays, and does nothing about the nominee at $t = 2$ . As it pays the cost $θ c$ when taking no action in the second period, delaying is better than rejecting outright with cost c even though it will surely defeat the nomination from the start. In this case, the Senate delays not because it needs more time to consider the nomination but because it wants to pay less cost for not confirming it.

Given the Senate’s strategy, the president chooses the nominee’s ideological position, x, optimally. The president’s equilibrium strategy is complicated because, given q, the president’s expected utility is not continuous in x. This occurs because, as x moves, the Senate suddenly changes its decision from not delaying to delaying, and from confirming for certain to confirming only if $B = b (x)$ . As Figure 2 illustrates, the president’s expected utility is not continuous around $x = 0.54$ and $x = 1.07$ when $q = 0.2$ , $s = 0$ , $p = 1$ , $λ = 0.7$ , $α = 0.6$ , $δ = 0.9$ , and $θ c = 0.35$ . In this example, $x = 0.54$ is the threshold at which the Senate switches from confirming for certain to confirming conditionally if it can gain utility transfer $b (x),$ and $x = 1.07$ is the threshold at which the Senate changes its behavior from conditional confirmation to inaction. Because the Senate’s behavior changes discontinuously, the president’s expected utility jumps at these points. As the figure shows, the best choice for the president is $x = p = 1$ .

Figure 2.

President’s expected utility from nominating a candidate with ideal point x. (Note: assumes q (the status quo) $= 0.2$ , s (the Senate’s ideal point) =0, p (the president’s ideal point)=1, $λ = 0.7$ , $α = 0.6$ , $δ = 0.9$ , and $θ c = 0.35$ .)

The president’s equilibrium strategy divides X into several intervals, and the president’s best choice depends on the interval to which q belongs. The president’s best choice is continuous in q in each interval, but not between adjacent intervals. Moreover, the number of the intervals varies depending on parameter values. Proposition 2.3 describes the president’s strategy.

Proposition 2.3. Assume X is sufficiently large. Then, the president’s equilibrium strategy is as follows.

For sufficiently small q, the president chooses a nominee with ideal point $x = p .$

As q increases up to s, the president plays $D_{1}$ , p, $D_{2}$ , $p,$ and $D_{3}$ in order. Depending on other parameter values, the p’s, $D_{2},$ and/or $D_{3}$ may not be played.

As q increases from s, the president plays $D_{3}$ , p, $D_{2},$ and p in order. Depending on other parameter values, $D_{3}$ and the first p may not be played.

Figure 3 graphically shows the president’s equilibrium strategy under the same parameter settings as in the previous example. As stated in Proposition 2.3, the president can pick his ideal point if the status quo is sufficiently small. Then, as q increases up to s, he plays $D_{1}$ and then, $D_{2}$ in order. As q increases from s, he plays p, $D_{3}$ , p, $D_{2}$ , and p in order. Here, the president’s equilibrium choice of x is not continuous in q (at four points), which is implied by the observation that his expected utility is not continuous in x.

Figure 3.

President’s equilibrium strategy. (Note: assumes s (the Senate’s ideal point) = 0, p (the president’s ideal point) =1, $λ = 0.7$ , $α = 0.6$ , $δ = 0.9$ , and $θ c = 0.35$ ; $D_{1}, D_{2}$ and $D_{3}$ are specified in (1).)

From Proposition 2.3 and Figure 3, it is clear that the president may play $D_{3}$ in equilibrium, which means that the nominee may fail to gain confirmation after a delay. When the president nominates someone whose ideal point is at $D_{3}$ , the Senate delays its decision to the second period, and confirms it only if it can gain the additional bargaining benefit $b (x) > 0$ . Thus, with probability $1 - λ$ , the nomination will be returned to the president at the end of the second period.⁷

Next, it is worth mentioning that the president’s best choice of x as a function of q is not symmetric around $s .$ Figure 4 depicts a part of Figure 3 to illustrate the asymmetry of the president’s equilibrium strategy around s. In particular, when the status quo is on the left side of the Senate’s ideal point, but is not too far away from it, it is hard for the president to move the status quo near his ideal point. Consider, for example, the president’s choices $x_{1}$ and $x_{2}$ for $q = q_{1} = 0.7$ and $q = q_{2} = - 0.7$ , respectively. The president chooses $x_{1} = 1$ for $q_{1}$ but chooses $x_{2} = 0.316$ for $q_{2}$ . This contrasts starkly with static games of appointments, which all predict that the president’s choice of a nominee’s ideal point will be the same for $q_{1}$ and $q_{2}$ because the ideological distances to the Senate are the same.

Figure 4.

Example of the president’s choices of x for two symmetric status quos around the Senate’s ideal point. (Note: assumes s (the Senate’s ideal point) =0, p (the president’s ideal point) =1, $q_{1} = 0.7$ , $q_{2} = - 0.7$ , $λ = 0.7$ , $α = 0.6$ , $δ = 0.9$ , and $θ c = 0.35$ .)

If so, why does the president choose a worse ideological position for $q_{2}$ even though the Senate is indifferent between $q_{1}$ and $q_{2}$ ? When the status quo is at $q_{1}$ , the president chooses $x_{1},$ and the Senate delays and accepts it at $t = 2$ by Proposition 2.2. On the other hand, when the status quo is at $q_{2}$ , the president selects $x_{2},$ and the Senate immediately accepts it. If the president tries to move from $q_{2}$ to $x_{1}$ , instead of $x_{2}$ , the Senate will behave in the same way as it does when $q = q_{1}$ : it delays and accepts $x_{1}$ at $t = 2$ . As in static games, if the Senate accepts an alternative for $q_{1}$ , there is no reason for it to dislike the same alternative for $q_{2}$ . However, the same alternative for the two status quos is not equally good for the president. The president is much more concerned about a delay when the status quo is at $q_{2}$ than when it is at $q_{1}$ because $q_{2}$ is farther away from the president’s ideal point. If the Senate delays its decision, the president has to get his policy utility from the status quo for the first period. Although he knows that a conservative nominee with ideal point $x = 1$ will be eventually confirmed regardless of whether $q = q_{1}$ or $q = q_{2}$ , the ideological cost of delay—the utility loss that the president incurs from delay due to the distance between his ideal point and the status quo—is too high to bear when the status quo is at $q_{2}$ . Therefore, when the status quo is at $q_{2}$ , the president will not try to nominate someone with a very conservative ideal point out of fear of delay or failure. Instead, he chooses x in the area in which the Senate will confirm without delay.

McCarty and Razaghian (1999) suggest that the president sometimes chooses moderate nominees to achieve a quicker confirmation. Under which conditions, however, is the president willing to make such trade-offs? Both the Senate’s and the president’s utilities are affected not only by the Senate’s final decision on the nomination but also by its decision of whether to delay or not. Thus, when making a nomination, the president has to worry about the ideological cost of delay as well as the Senate’s confirmation decision. My model shows that the cost of delay is not constant, as it varies depending on the position of the status quo. The president nominates someone with a moderate ideal point to avoid delay when the status quo is to the left of the Senate and far enough away from the Senate’s ideal point. Proposition 2.4 provides more precise conditions.

From the equilibrium strategies of the president and the Senate, conditions for delays now can be specified. Proposition 2.4 characterizes the area of the status quo in which delay occurs. I call this the delay area.

Proposition 2.4. Along the equilibrium path, there exists a unique $κ \in R$ such that, for any X, the Senate delays its decision until $t = 2$ if and only if $κ < q < p$ . Moreover,

1. $κ < s$ , and

2. $κ$ is strictly increasing in s, and weakly decreasing in p and c.

Proposition 2.4 states that the delay area is $(κ, p)$ . Surprisingly, given the complexity of the president’s equilibrium strategy, the delay area consists of one interval. The delay area has several interesting properties.

First, the delay area is wider than the interval between the ideal points of the president and the Senate under all parameter settings. One might naturally expect a delay when the status quo is between the president’s and the Senate’s ideal points, because any movement from the status quo will make either player worse off. On the other hand, it might not be clear why delay occurs when the status quo is to the left of the Senate’s ideal point (i.e., $q \in (κ, s]$ ). To see this, recall that the president’s best choice of x lies between his and the Senate’s ideal points (i.e., $s \leq x \leq p$ ). When $q < s$ , the president’s policy gain from the new appointment is $- | x - p | + | q - p | = x - q$ , while the Senate’s gain is $- | x - s | + | q - s | = 2 s - q - x$ . Therefore, the new appointment is more beneficial to the president than to the Senate by $2 (x - s) > 0$ . This means that, even if the Senate gets little policy gain (if any) from the new appointment, the additional bargaining gain $b (x)$ could be quite large because it is a portion of the president’s policy gain. Thus, the Senate has a strong incentive to wait until the next period. The president is willing to wait until the second period to obtain a better policy outcome as long as the ideological cost of delay is not too large (i.e., $q > κ$ ).

Next, as the ideological distance between the president and the Senate increases, the delay area becomes wider. Why does the ideological gap matter? Whenever the status quo lies between the ideal points of the president and the Senate, if the president attempts to move the status quo closer to his ideal point, no matter how slightly, the Senate will delay its decision because it prefers the status quo. To maintain the status quo as long as possible, the Senate has an incentive to delay. Because the status quo is close enough to the president’s ideal point to make the president bear the ideological cost of delay in this case, the president is willing to wait until the second period to get a better policy outcome. This result is consistent with the existing empirical findings in the literature (Asmussen, 2010; Binder and Maltzman, 2002; McCarty and Razaghian, 1999; Shipan and Shannon, 2003; Williams, 2008).

Importantly, this implies that a rational president chooses policy gain over quicker confirmation when the status quo is not too far from his ideal point, providing a theoretical micro foundation for existing claims and findings in the literature. For example, Binder and Maltzman (2002) argue that the greater the ideological difference between the Senate and the president, the longer it takes for the Senate to confirm the nomination because the Senate prefers slower movement on ideological foes. Their argument implicitly assumes that the president always appoints someone who shares his ideological view regardless of the ideological position of his opponent or the status quo, even when this causes excessive delay. However, the president may account for the Senate’s preference and decide to minimize the cost of delay. My model shows that he makes such choices when the status quo is too far away and too costly to maintain. In contrast, when the status quo is between the ideal points of the two players, the president can afford to wait. Thus, my analysis verifies that, even if the president behaves rationally, delay is more likely to occur as the ideological disagreement between the president and the Senate deepens.

Finally, the delay area widens when the Senate’s rejection cost c, increases. As c increases, the president’s advantage over the Senate increases as implied in the literature that popular presidents can influence senators’ decisions via mobilization of their constituents (Krutz et al., 1998; Bond et al., 2009; Johnson and Roberts, 2004). If the president tries to nominate someone extreme, the Senate will not defeat the nomination because of the high cost. At best, it will delay and confirm the nominee later. Knowing this, the president does not make ideological compromises even when the status quo is quite far from his ideal point because his policy utility can be greatly improved in the second period when c is high. Therefore, the delay area expands.

With the delay area characterized in Proposition 2.4, I now analyze the impacts of the model parameters on the expected duration. To see the impact of the ideological distance between the president and the Senate on the expected duration, I assume that the status quo, q, the president’s ideal point, $p,$ and the Senate’s ideal point, s, are independent random variables that are uniform on the policy space X.⁸ Then define the expected duration conditional on the ideological distance between the president and the Senate as

D (z; c) = E [T | | p - s | = z],

where $z \geq 0$ is the ideological distance between the president and the Senate, and T is the random variable representing the time at which the Senate takes its final action. Although it is not explicitly indicated, $D (z; c)$ also depends on other parameters.

Proposition 2.5. The expected duration is weakly increasing in z and c. Moreover, the effect of z decreases as c increases. That is, $D (z; c)$ is twice differentiable, and

\frac{\partial}{\partial z} D (z; c) \geq 0, \frac{\partial}{\partial c} D (z; c) \geq 0, and \frac{\partial^{2}}{\partial c \partial z} D (z; c) \leq 0 .

The first implication is that as the ideological distance between the president and the Senate increases, the Senate is more likely to delay its decision. Second, interestingly, as the Senate’s rejection cost increases, the Senate is more likely to delay its decision. Because the Senate’s rejection cost is positively correlated with the president’s popularity, the confirmation duration will be longer when the president is more popular. As discussed previously, this is because a highly popular president will be willing to wait to get his preferred nominee confirmed, exploiting the fact that the Senate will eventually need to accept the nominee to avoid blame. Finally, the effect of the ideological distance between the president and the Senate depends on the Senate’s rejection cost. Specifically, when the rejection cost is high, the ideological disagreement between the players does not have much effect on the delay decision, whereas it has a greater effect when the rejection cost is low.

In addition to the implications on confirmation duration, the model produces implications on confirmation success. Proposition 2.6 shows the impact of z and c on confirmation success.

Proposition 2.6. The probability of confirmation success (either at $t = 1$ or $t = 2$ ) is decreasing in z, and increasing in c.

The proposition states an intuitive result that the nominee is more likely to be confirmed if the Senate and the president are ideologically close or if the president is popular.⁹ In equilibrium, the president never nominates someone who will be rejected by the Senate for certain. Rejection may occur when the president chooses a somewhat extreme x while expecting to buy off the Senate in other policy areas.¹⁰ Since the opportunity to buy off the Senate arises with probability $λ$ , the nominee is rejected with probability $1 - λ$ . The range of status quo over which such choice of x is optimal expands with z and shrinks with c. Thus, the probability of confirmation success is decreasing in z and increasing in c.

When the Senate is ideologically distant, the president may need to make a concession to the Senate in other policy areas to get his nominees confirmed. As the Senate’s rejection cost c becomes higher, however, the president can move the status quo much closer to him without gambling on the chance to buy off the Senate because the Senate will confirm the nomination as long as its utility loss from the confirmation is less than the rejection cost. Thus, the safer option becomes more attractive to the president in this case. To maximize his policy gain, the president would rather choose a nominee who can be confirmed for certain without additional payment.

Combining the results from Propositions 2.5 and 2.6 produces an interesting implication that candidates nominated by highly popular presidents will be more likely to stay longer in the confirmation process but eventually will get confirmed. A president with high popularity chooses a relatively extreme nominee, but the Senate will have to confirm the nominee in the end whether or not it can gain additional bargaining benefits so as not to incur high political cost. The Senate can maintain the status quo at best by delaying, but it may not be able to gain leverage over other issues when facing a popular president.

3. Conclusions

In this paper, I provide an institutional explanation for senatorial delays in the judicial confirmation process. Using a dynamic model, I identify the conditions under which the president makes a nomination that the Senate has an incentive to wait to confirm. Delays do not occur simply because the Senate does not want to support the president’s nominee of choice, as often alleged. Rather, they occur when the president is able to bear the ideological cost of delay and tries to maximize his policy gain despite the cost.

The model can be applied to other judicial appointments or to non-judicial presidential appointments. It will be interesting to see whether the model’s implications are supported by data on federal judge appointments, executive branch appointments, or appointments to independent boards.

Footnotes

Acknowledgements

I am thankful to Nicole Asmussen, Gregorio Caetano, Mark Fey, David Primo, Jesse Richman, Lawrence Rothenberg and Youngchae Lee for helpful comments and advice. I also thank the co-editor and the two anonymous reviewers for insightful suggestions. All remaining errors are my own.

Declaration of conflicting interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: This work was supported by the National Research Foundation of Korea Grant funded by the Korean Government (grant number NRF-2014017781).

Supplementary material

The appendix is available online at this web address: https://sites.google.com/site/jinheejo7/home/JO2015_Appendix.pdf?attredirects=0&d=1.

Notes

References

Admati

Perry

(1987) Strategic delay in bargaining. Review of Economic Studies 54(3): 345–364.

Asmussen

(2010) Female and minority judicial nominees: president’s delight and senators’ dismay? Legislative Studies Quarterly 36(4): 591–619.

Bell

(2002) Senatorial discourtesy: the Senate’s use of delay to shape the federal judiciary. Political Research Quarterly 55(3): 589–607.

Binder

Maltzman

(2002). Senatorial delay in confirming federal judges, 1947–1998. American Journal of Political Science 46(1): 190–199.

Bond

Fleisher

Krutz

(2009) Malign neglect: evidence that delay has become the primary method of defeating presidential appointments. Congress and the Presidency 36: 226–243.

Brace

Hinckley

(1992) Follow the Leader: Opinion Polls and the Modern Presidents. New York: Basic Books.

Console-Battilana

Shepsle

(2009) Nominations for sale. Journal of Theoretical Politics 21(4): 413–449.

Edwards

III (1980) Presidential Influence in Congress. San Francisco, CA: Freeman.

Epstein

Lindstadt

Segal

. (2006) The changing dynamics of Senate voting on Supreme Court nominees. Journal of Politics 68(2): 296–307.

10.

Goldman

(1997) Picking Federal Judges. New Haven, CT: Yale University Press.

11.

Hart

Mas-Colell

(1996) Bargaining and value. Econometrica 64(2): 357–380.

12.

Hollibaugh

(2015) Vacancies, vetting, and votes: a unified dynamic model of the appointments process. Journal of Theoretical Politics 27(2): 206–236.

13.

Johnson

Roberts

(2004) Presidential capital and the Supreme Court confirmation process. Journal of Politics 66(3): 663–683.

14.

Kennan

Wilson

(1990) Theories of bargaining delays. Science 249(4973): 1124–1128.

15.

Kreps

(1979) A representation theorem for preference for flexibility. Econometrica 47(3): 565–577.

16.

Krutz

Fleisher

Bond

(1998) From Abe Fortas to Zoe Baird: why some presidential nominations fail in the Senate. American Political Science Review 92(4): 871–881.

17.

McCarty

Razaghian

(1999) Advice and consent: Senate responses to executive branch nominations 1885–1996. American Journal of Political Science 43(4): 1122–1143.

18.

Martinek

Kemper

Van Winkle

(2002) To advise and consent: the Senate and lower federal court nominations, 1977–1998. Journal of Politics 64(2): 337–361.

19.

Moraski

Shipan

(1999) The politics of Supreme Court nominations: a theory of institutional constraints and choices. American Journal of Political Science 43(4): 1069–95.

20.

Ostrom

Simon

(1985) Promise and performance: a dynamic model of presidential popularity. American Political Science Review 79: 334–358.

21.

Primo

Binder

Maltzman

(2008) Who consents? Competing pivots in federal judicial selection. American Journal of Political Science 52(3): 471–489.

22.

Rehnquist

(1998) 1998 year-end report of the federal judiciary. Federal Sentencing Reporter 11(3): 134–136.

23.

Rivers

Rose

(1985) Passing the president’s program: public opinion and presidential influence in congress. American Journal of Political Science 29: 183–96.

24.

Roberts

(2010) 2010 Year-End Report on the Federal Judiciary. Available at: http://www.supremecourt.gov/publicinfo/year-end/2010year-endreport.pdf

25.

Shipan

Shannon

(2003) Delaying justice(s): a duration analysis of Supreme Court confirmations. American Journal of Political Science 47(4): 654–668.

26.

Williams

(2008) The power of footdragging: bargaining and delay in the federal confirmations process. Doctoral dissertation, The Ohio State University, USA.