December 22, 2006

Levinson and Law on the Nuclear Option and Filibusters

David Law and Sandy Levinson have written Why Nuclear Disarmament May be Easier to Achieve than an End to Partisan Conflict over Judicial Appointments (forthcoming, University of Richmond Law Review). Here is the 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.

Posted by Rick Hasen at December 22, 2006 12:03 PM