President Trump’s nomination of Neil Gorsuch to the Supreme Court has trapped Senate Democrats in a seemingly lose-lose scenario.
If the Democrats decide to filibuster Trump’s nomination, Republicans will likely use the so-called “nuclear option” and alter the rules that require 60 votes to confirm a Supreme Court nominee. This would guarantee Gorsuch’s confirmation through a simple majority, and likely lower the numerical threshold for confirming every future nominee.
But if Senate Democrats ignore the visible anger of their constituents and cooperate with Republicans by confirming Gorsuch, they will likely face steep consequences at the ballot box in 2018.
Which edge of this rusty, tetanus-ridden sword should Senate Democrats choose?
One answer is made plain by canonical results from game theory, the mathematical study of how competing actors negotiate for maximum personal gain. Those results show that, given the past behavior of Republicans, the Democrats should be as obstructionist as they can. That is—in the parlance of game theory—Democrats should “defect,” not cooperate.
We can view the Democrats’ current dilemma as one round of a protracted game with their Republican counterparts over Supreme Court nominations. Recall that in the most recent round of the game—let’s call it the Garland round—Senate Republicans refused to hold hearings for Merrick Garland, President Obama’s Supreme Court nominee (defection), despite a strategic, conciliatory move by the Obama administration to choose a moderate judge with whom many Republicans could find common ground (cooperation).
Surely, thought Democrats, if Republicans denied Garland a seat, they would appear unreasonable and reckless to voters leading up to the November elections, their propensity toward conflict and disregard for the public good exposed for all to see. If Republicans happened to cooperate, on the other hand, Democrats would succeed in filling a seat on the nation’s highest court—the best possible outcome for the Democrats.
But Republicans defected. Hard. And not only did voters prove their relative indifference about fractious styles of governing in November, they elected a person to the presidency who has shown himself to be completely unmoved by norms and tradition when it comes to inter-branch negotiations.
Indeed, one of the more important lessons of 2016 is that many voters don’t care very much about whether their government representatives behave in a civil manner toward one another or respect political norms. They don’t prioritize balance or resolution or courtesy. They mostly just want their team to win.
Which leads us back to game theory. The Democrats are facing an opposition party that essentially chooses defection at every turn. And with an only-defection opponent, the best counter-strategy is defection only.
The political sin Democrats commit repeatedly is somewhat of a commendable one. It is the pursuit of an empty hope that voters want to elect people to office who represent the best attributes of America, “the better angels of our nature,” as Lincoln put it.
But if Democrats don’t defect in the Gorsuch round, they will prove that they have misunderstood their constituents, their opponents, and the strategies their opponents are employing.
It is time for the Democrats to choose a different strategy.
