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from the new regime. For example, if one is not concerned about any sanction other than
removal from office and if there is a history of new regimes always replacing all of the judges,
then it would be irrational for a judge to defect. Even without such a history a judge might
wonder if the new regime would have any incentive to retain any of the old regime judges on the
court, even if they defect from the old regime at the end, instead of picking new judges that are
closely identified with the new regime and/or are believed by the new regime to share its values.
In part, to make such an assessment the judges on the current court must be able to assess the
cost the new government will incur if it replaces some or all of the judges. If the new regime can
replace the judges from the old regime with very little real political cost then it may be
unreasonable for a judge to assume that there is anything that can be done to retain their seat. In
such a situation, defection from the current government would be irrational. A working
hypothesis that might be generated by these considerations is that strategic defection will become
more likely as the severity of the expected sanctions from the incoming regime increase.
Furthermore, we have other problems with respect to the judges’ preferences that have
not appeared to be considered so far. First, it may not always be reasonable to assume that all
judges perceive and value threats in a similar way. The backgrounds, reputations, and alliances
of some judges may make them more or less vulnerable to sanctions from either the current or
the incoming regime. In addition, it would be useful to consider the possibility that judges could
themselves contribute to, or affect, the supposedly exogenous conditions of the game; that is, that
they could have an active role in favoring a certain outcome (e.g., either actively trying to bring
about or prevent regime change), a problem that could take back the debate from the grounds of
strategic defection to the more traditional strategic support account.
Convention