- In this paper, we employ simple formal models drawn from political science to explain the occurrence of gridlock in the federal judicial selection process, and to explore the implications of the "nuclear option," by which a bare majority of senators employs parliamentary tactics to abolish the filibuster with respect to judicial nominations. Our application of a pivotal politics model leads us to reject the notion that appointments gridlock is a straightforward consequence of divided government. Instead, meaningful changes to the ideological balance of the federal bench require a more demanding ideological alignment of multiple veto players relative to the status quo. This conclusion is broadly consistent with the recent history of the federal judicial appointments process.
We then adapt the pivotal politics model to the existence of the nuclear option by introducing a new player, the nuclear pivot, who supplies the last vote needed to trigger the nuclear option, and whose precise identity is uncertain - perhaps even to the nuclear pivot herself. Introduction of the nuclear pivot curtails the extent of gridlock and makes possible some change in the status quo, albeit less change than would be possible in the outright absence of the filibuster. We conclude not only that the threat of the nuclear option works to the detriment of the minority Democrats, but also that the Democrats have gained nothing of substance from the agreement reached by a group of moderate senators - the so-called "Gang of 14" - that has indefinitely forestalled actual exercise of the nuclear option. However, both uncertainty over the location of the nuclear pivot and the degree to which the Democrats have successfully prolonged the confrontation over judicial nominees may hinder the President from capitalizing upon the advantage otherwise conferred by the threat of the nuclear option.
- A president’s political mortality—particularly that of a lame-duck president entering the second half of his last term—can be expected to influence his choice of nomination strategy. If presidents are to leave their mark upon the world—or the judiciary—they must do so quickly. Judicial vacancies left for Democratic successors represent missed opportunities for the Republican President and Senate leadership. Moreover, if the President can improve today upon the status quo with appointments that are only moderately conservative, there is no reason for him to wait until tomorrow to do so: a moderately conservative judge does nothing to affect the status quo until he is already seated on the bench. To paraphrase an old adage, as the end of his second term approaches, a bird in the hand may well prove to be worth two to President Bush.
With the support of a likeminded Senate majority willing to threaten the nuclear option, the President enjoys powerful advantages over his opposition in the Senate. He cannot make full and prompt use of these advantages, however, until he first knows just how extensive they actually are, and it is questionable whether he now has the time to discover their true extent by trial and error. The sheer passage of time thus casts a different light upon the plight of his enfeebled opposition. By now, it should be clear that the existence of the nuclear option is not good for the Democrats. Moreover, the truce that has been styled a Democratic victory is, in substance, nothing of the sort. At best, it formalizes in loose language what was political reality all along—namely, that the filibuster may only be used to the extent that the nuclear pivot is in fact willing to tolerate filibusters. The real victory for the Senate’s remaining Democrats lies in the fact that, for the better part of the current president’s political lifespan, they have managed to filibuster judicial nominees and postpone the moment of nuclear reckoning–only to postpone it again with an uncertain truce, and thereby keep the true extent of their own power shrouded in mystery, at the critical juncture of the President’s first Supreme Court vacancy.
