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  • Max Stearns

The Gorsuch Game

In his opening remarks, Senator Lindsay Graham (R-SC) admonished his Democratic counterparts to treat Neil Gorsuch, a respected conservative Tenth Circuit jurist, the way Graham had treated both Sonia Sotomayor and Elana Kagan, each of whom he voted to confirm despite strong ideological differences. Senate Democrats, are frustrated by what they regard as a stolen Supreme Court seat. This follows their Republican colleagues' decision not to hold hearings after Barack Obama's Merrick Garland nomination, which occurred after Antonin Scalia's passing. The Democrats are signaling a fight. Although I share the Democratic frustration, this is unwise. The best course of action is to find a way to let this nomination through. Neil Gorsuch will ultimately serve on the Supreme Court with or without any Democratic votes. The question is what the process will look like and what the implications for the Democratic strategy will be for future nominations to the Supreme Court for as long as Republicans control the White House and Senate.

There are two steps in this game. The first recognizes that the Republicans, with 52 seats, have the votes to both go "nuclear," ending the Senate filibuster for Supreme Court nominations, and then to confirm by a simple majority vote of 51. They do not need any of the 46 Democratic or two Independent (caucusing with Democrats) votes if they do this, whereas they need eight Democratic votes if they retain the filibuster, which would require 60 votes to confirm Gorsuch. The second involves the real challenge among the Democrats in providing those eight votes to avoid the nuclear option as none will wish to be seen as acquiescing in the confirmation battle.

The Republicans can, and will, use the so-called "nuclear" option if forced to do so by what they regard as obstreperous Democratic blocking behavior. This would mean voting to end the Senate filibuster for Supreme Court nominees, rendering the process one of simple majority rule, not only for this nomination, but for all others as well. The consequence would be removing any semblance of a Democratic checking function in the event that Trump nominates a candidate, who unlike Gorsuch, really is an outlier among the general list of respectable conservative jurists who might fill a future Supreme Court vacancy.

The problem for the Democrats is deeper: they face a prisoners' dilemma game, both with their Republican counterparts, but more notably among themselves. Both the Republicans and the Democrats are best off keeping the filibuster for Supreme Court nominees in the long term, allowing the out of power party some limited check against outlier appointees. Today's majority is tomorrow's minority, and both sides understand this. But today's politics is notably myopic. Even so, the larger problem that the Democrats face is among themselves.

Imagine you are one of 48 Democratic Caucusing Senators, facing 52 Republican colleagues. If the Republicans go nuclear, you have no voice at all, as 51 is sufficient to pass through a nominee. If you allow the Gorsuch nomination to succeed, then you retain a role, at least for now, and possibly until the tables turn, with the Democrats regaining control of the Senate. And yet, as an individual Democratic Senator, you rightly worry that by voting to confirm Gorsuch, you place yourself at political risk. Now you risk being attacked from the left and right. Those in your own party will think you caved, perhaps putting up a credible primary challenge, and those on the right are going to try to unseat you no matter what you do.

Imagine each Democratic Senator, or at least a critical subset of them, understands this, and thus hopes that Gorsuch gets confirmed with the 60-vote margin, meaning that eight Democratic Caucusing Senators somehow acquiesce. At the same time, however, each individual Democratic Senator would prefer not to be the one who caves. The best result is to have Gorsuch confirmed without breaking the filibuster, but to have eight other Democrats provide the necessary votes. If all the Democratic Senators, or even a subset larger than eight, understand this, they are in a classic prisoners' dilemma.

In the simplest version, two prisoners are separated, and each is told that if she remains silent, the state will convict each on a misdemeanor with a six-month prison term; if one rats out the other, and the other is silent, the rat goes free, but the silent one gets convicted of the maximum felony, facing five years; and if both rat out each other, each will get some dispensation for the helping the state, but nonetheless each will face a serious felony charge with a three-year sentence. Although each player would get a higher payoff if both were silent (six months each), with these incentives, it is rational for each to defect, ratting on the other, regardless of what the other does, thereby ending up with a three-year sentence.

The Democratic Senators face a similar game. To simplify assume two Democratic Senators, and that we need only one of them to vote to confirm to retain the filibuster. If each cooperate with each other, voting to let Gorsuch through, Gorsuch gets confirmed and they retain the filibuster; if Senator Alexa cooperates voting to confirm, Senator Beatrice gets the best payoff by defecting, voting against Gorsuch, with Gorsuch getting confirmed without the nuclear option, but at Alexa's expense; and if both Alexa and Bono follow the defection strategy, then Gorsuch gets confirmed, but with the nuclear option.

The real problem is that recognizing you are in a prisoners' dilemma does not get you out of it. I'm not sure how this will all play out. We will undoubtedly see much grandstanding along the way. The prisoners' dilemma assumes an inability to coordinate. Let's imagine that the Democratic Senators are better than that. Senate seats are staggered, one third of the Senate is up for election every two years. Perhaps they might agree, now and in the future, that there's an obligation among those at the lowest risk, meaning those who are most senior and whose re-election is most distant--six years--to vote to confirm, working down until they reach the necessary eight votes. The details would have to be ironed out, and the strategy would require a fair amount of coordination and trust. Time will tell if the Democratic Senators can pull such a thing off.

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