Tuesday, August 7, 2018

SCOTUS game theory

This is Joseph

I want to talk about this tweet in terms of game theory:

What I am interested in is whether this would ever be a good strategy.

So, first of all, would this work.  Well, if the "doctrine" was followed, it would allow whoever won the 2020 election to name Ruth Bader Ginsburg's replacement.  So the main advantage, in this scenario, would be to make the Republican party look good, by showing how they are a party of principal.  That seems an odd goal for a sitting justice to try and make a partisan organization look good as a goal.  The open seat would motivate liberals, but it would also motivate conservatives and act as a unifying force in both coalitions.  I am not sure that this helps liberals, on net.  It might hold together the conservative coalition, under tough conditions, even more so.

If the "doctrine" was ignored then there would be another Republican nominee to the Supreme Court, meaning six of nine justices were nominated by Republicans.  Insofar as this matters, and people act like it matters a lot, then it is a major win for the Republicans.  After all, what is the point of delaying the appointment of a new Supreme Court Justice at the end of Obama's term if there wasn't some sort of benefit?

It also seems to deeply misread the psychology of the justice involved.  If she wanted to lock in her side, why would she not have retired at 81 (like Anthony Kennedy) and given Obama a clear shot at naming a successor?  Clearly, she feels competent to do her job (and the evidence that she can is compelling) and doesn't like to play these games with timing her retirement.  Fair enough.  If she did decide to play games, why would she do it in order to maximize the gains of the Republican party at the cost of liberals?  You can say what you want about Donald Trump, but he has not been a noted feminist firebrand and a lifetime of fighting for gender equality seems to position one to not want to go out of one's way to hand him another nomination.

Finally, the five year plan actually makes a lot of sense for a justice who is trying to be non-political.  This has her retiring in 2022 or 2023.  Long enough before the end of the next president's term that confirmation should happen if it is possible at all.  It's well before anybody has any idea who the next president will be and so it cannot be motivated by partisan considerations.  The opening is still part of the election discourse, but not in an immediate way that pulls oxygen away from the issues.  It's a good plan.

So I don't see how switching to a 2020 retirement would be a more optimal strategy.


1 comment:

  1. Joseph:

    I clicked through to the website, and it looks like the authors would disagree with Ruth Bader Ginsburg on just about everything. So when you talk about "optimal strategy," I think their goal would be to maximize the probability of GInsburg to be replaced by a very conservative judge. Based on that, I think they'd want her to retire as soon as possible. Presumably they don't think she's retiring right now; maybe 2020 is the soonest they feel they can hope for.