In the discussion of the Kavanaugh hearings, there has been much attention played to fairness, justice, burden of proof, and so on, but at the end of the day a confirmation process is not a court trial. While we certainly should wish and expect for our elected representatives to take collective action in the best interests of the country (as they arguably have in the majority of past court confirmations), it’s important to remember it’s a purely political process with purely political drivers. I am not in any way making a statement about the merits of the case (which perhaps belongs on court), only suggesting a different lens that explains the senators’ behavior rather than just the facts in front of them.
In this case, the lens is the Prisoner’s Dilemma, a classic thought problem in economics. Very briefly, it explains why two people (or organizations or parties) might not work together even if it was in their common interest to do so. In its classic formulation, it explores the case of two prisoners – let’s call them D and R. Each has been arrested for a crime and they are being questioned separately. If both are silent, they will both go free since there is insufficient evidence to hold them. If D rats out R and R remains silent, D will go free since there is now D’s evidence to convict R or vice versa. If both accuse each other, they both stay in prison, but on a less charge (a 1 year sentence instead of the 3 year sentence they’d have gotten if only one of them was accused.) It’s clearly in the interest of both to remain silent so they both go free, but, absent any coordination or trust, often one of them will rat the other out in order to avoid the worst case of being accused while remaining silent. (Whether the accusation is justifiable is irrelevant for the sake of the exercise.)
While this sounds narrow, the principle has been generalized to explaining behavior as varied as international relations and sports. I think it also applies to Supreme Court picks.
I’m not suggesting that it is in the common interest of Republicans and Democrats to nominate Brett Kavanaugh, but rather that it’s in their common interest that Supreme Court appointments be fair and relatively smooth. After all, even when dealing with an opposing party’s nominee, everyone knows that at some point the shoe will be on the other foot, so why make the process toxic? Again this goes beyond the merits of the case since resistance was in full force even before the sexual assault allegations became known. I believe that the answer lies with a previous nominee, Merrick Garland.
In a fun, approachable piece on the Prisoner’s Dilemma, NPR’s Planet Money showed how if two parties play the game over and over again, different strategies yield different results. For example, if D is usually silent, R will learn that his safest path is to accuse D since they guarantee it will avoid the worst case of being accused while remaining silent. In fact, the strategy that wins in most simulations is “generous tit-for-tat” – retaliate most of the time, but every so often randomly forgive in order to avoid indefinite escalation.
How does this apply to the current Supreme Court process? Republicans denied Merrick Garland a vote for confirmation for a year despite no substantial opposition to him as a nominee (the equivalent of ratting out in the Prisoner’s Dilemma). If Democrats then allowed even unobjectionable candidates to continue to be confirmed by Republicans without a huge fight (the equivalent of being silent), they’d be transmitting to Republicans that Republicans could safely continue to block Democratic nominees without repercussion. The successful models show that it’s necessary to revenge yourself (tit-for-tat) most of the time when you are ratted out or the other side will take advantage.
But without a majority, Democrats had view options. They tried to make some stink on Neil Gorsuch’s nomination by invoking third-rail political issues but got little traction. Finding a issue of substance for attacking Brett Kavanaugh finally allowed what is, in the end, the only strategically rational behavior.
Now the question is which side will allow the process to return to normality. This is equivalent to the random forgiveness element in “generous tit-for-tat”. So long as both sides keep escalating, everyone gets badly hurt. Hopefully the next candidate to the court – Republican or Democrat – will be a reasonable choice who can be relatively easily confirmed and both sides will allow a return to normalcy. If not, the Prisoner’s Dilemma will continue to dominate and both sides will try to slash and burn each others’ candidates into oblivion. It’s just economics.