The Senatorial Courtesy Game: Explaining the Norm of Informal Vetoes in Advice and Consent Nominations

• Published date: 01 May 2005
• DOI: http://doi.org/10.3162/036298005X201518
• Author: TONJA JACOBI
• Date: 01 May 2005

193Senatorial Courtesy Game

LEGISLATIVE STUDIES QUARTERLY, XXX, 2, May 2005 193

TONJA JACOBI

Northwestern University

The Senatorial Courtesy Game:

Explaining the Norm of Informal Vetoes

in Advice and Consent Nominations

Despite the contentiousness of advice and consent nominations, the Senate

usually rejects a candidate to whom a home senator objects. Using game theory, this

article explains the persistence of senatorial courtesy and maps its effects on which

candidates succeed. The greater salience of a home nomination allows retaliation and

reciprocity in a repeated game to elicit support for a veto, even under adverse condi-

tions. Comparative statics indicate the range of the president’s feasible nominees and

show which players gain and lose from the practice. Most notably, the president can

benefit from an exercise of senatorial courtesy.

Introduction

Presidential nominations subject to the advice and consent of the

Senate, including federal judgeships, raise some of the most controversial

issues that representatives face. Nominations are often the subject of

intense and bitter political battles, both within the Senate and between

the Senate and the executive. Yet even when supporters of a nominee

control a majority of votes, those majorities routinely allow one senator

to thwart the nomination, under the informal norm of senatorial courtesy.

Senatorial courtesy is an unwritten rule followed in both the United

States Senate and the New Jersey Senate: when a nominee for a state

or district position is opposed by the senator representing that constitu-

ency, the Senate will vote down the nomination or will never address it,

allowing it to lapse. Senators relinquishing their power to support a

nominee in this way are not aberrations; senatorial courtesy has persisted

since George Washington’s presidency.

Senatorial courtesy is controversial for many reasons,1 but two

institutional effects are particularly significant. First, senatorial courtesy

is a countermajoritarian force within the Senate, made exceptional

because it is not enforced by any written rule. The informal nature of

senatorial courtesy raises the question, Why do majorities of senators

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194 Tonja Jacobi

continue to follow a norm that seemingly disadvantages them?2 The

first half of this article answers this question. In a repeated game, each

senator expects to be in the majority more often than to be the lone

individual asserting the right of veto; but if senators care significantly

more about nominations that directly affect their own state than other

states, then they will support the dissenting voice out of an expectation

of future reciprocity.

The second institutional effect of senatorial courtesy is that it

imposes an additional check on the president’s nomination power:

nominations are subject not just to the advice and consent of the Senate,

but to the whim of one or two individuals who share the nominee’s

home state. This effect raises the question of whether or not senatorial

courtesy systematically disadvantages the president; the second half

of this article uses spatial models to assess the comparative statics of

the nomination process, with and without senatorial courtesy exercised.

I show that, overall, the president is in fact advantaged by senatorial

courtesy. In certain circumstances, the president can control which

senator has the power to exercise senatorial courtesy, and so can actually

increase presidential influence on confirmation, as compared to when

the fate of the nomination is determined by the median senator.

Other spatial models of appointments construct the appointment

process as a product of the interaction between the president and the

median of the Senate.3 This model’s results indicate that purely

presidential–median-senator models are incomplete because they do

not account for the role of the home state senator in the nomination

process. Also, the results herein show that senatorial courtesy does not

harm the interests of the president. This finding suggests that the interests

of the president and any potential veto points do not constitute a zero-

sum game, and any rigorous nomination model needs to account for

this complexity. Before beginning the game, some clarification of key

terms is necessary.

Explaining Senatorial Courtesy

Senatorial courtesy seems to present a paradox because it involves

senators voluntarily refraining from exercising their constitutional

prerogative to advise on the nominations of judges, U.S. attorneys,

U.S. marshals, and other officeholders. The seeming paradox can be

explained by the persuasive effect of reciprocity and retaliation. Senators

support vetoes by home state senators because they expect to one day

be in a like position, and they hope that their past support of senatorial

courtesy will be reciprocated.

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