Filibuster Change and Judicial Appointments

Abstract: We consider the effects of filibuster change on judicial appointments, judicial voting, and opinion drafting. The filibuster effectively empowers a minority of forty-one Senators by requiring sixty votes to break off debate on a nomination. We develop a game-theoretic model that explains that the elimination of the filibuster changed the relevant “pivotal Senator” whose support was necessary to secure a nomination. Freed of the power of the minority of Senators, Presidents ought to exercise freer rein in naming judicial nominees closer to their preferred ideology. Moreover, sitting judges who seek elevation to a higher court ought to alter their “signal” that they would be good candidates to match the preferences of the newly-relevant pivotal Senator. To test our hypotheses empirically, we use the 2013 elimination of the filibuster in the U.S. Senate for lower federal court judicial nominations as a natural experiment. Looking before and after the change in filibuster rule, we find statistically significant support for shifts in the characteristics of judges appointed, the voting of sitting judges, and the language used by sitting judges in politically-charged cases.