The Prisoner’s Dilemma: Why Democrats Should Block Gorsuch

(Photo: AP/J. Scott Applewhite)

Supreme Court nominee Neil Gorsuch is escorted by former New Hampshire Senator Kelly Ayotte on the way to a meeting with Senator Ted Cruz on February 2, 2017.\

In 1950, two mathematicians at the RAND Corporation created a now-famous game called "Prisoner's Dilemma." A study in the incentives of cooperation and resistance, it is now very relevant to Democrats trying to determine how to respond to President Trump's nomination of conservative jurist Neil Gorsuch to the Supreme Court.

The game's setup goes like this: Two prisoners are being held in solitary confinement with no means of communicating with one another. Prison officials, lacking enough evidence on a major charge to convict either, but confident of conviction on a minor charge, offer each of them a deal to snitch on the other. If both prisoners refuse to betray one another, each gets a year in prison on the lesser charge. If both snitch, each serves two years. But if one cooperates with authorities while the other refuses, the betrayer goes free while the stalwart get three years.

In a two-party political system, each party can be seen as a prisoner: Refuse to cooperate too much, and government falls apart with no one getting anything. Cooperate too much, and the other party will take advantage of you.

If America were still a rational political system, Democrats would be advised to cooperate on the Gorsuch nomination. Even though he would occupy a Supreme Court seat functionally stolen from President Obama when Senate Republicans refused for almost a year to hold confirmation hearings on Merrick Garland, Gorsuch is not patently unqualified for the job. True, his judicial philosophies make him unacceptable to the majority of Americans, who support reproductive rights, restrictions on money in politics, stricter gun control, and better protections for workers. But since Gorsuch would fill a seat vacated by a conservative jurist, the late Antonin Scalia, there may be some argument for Democrats to keep their powder dry. The next time there is a vacancy on the high court, Trump could well tap someone further to the right than Gorsuch to replace a liberal jurist. So shouldn’t Democrats cooperate with Trump today, and save their ammunition for the next and arguably more important battle?

The answer is no—for the simple reason that America no longer has a rational political system. As political scientists Thomas Mann and Norman Ornstein have repeatedly noted, the Republican Party has veered unilaterally into radical extremism. The GOP obstructed President Obama on a scale unseen in American history since before the Civil War, refusing to cooperate with him on even the most benign matters. The GOP threatened the full faith and credit of the United States, blocked small business tax cuts, and treated the Heritage Foundation-backed conservative alternative to a single-payer health-care system, which had been dubbed Romneycare in Massachusetts, as the end of American freedom itself.

And now comes Donald Trump, as aggressive a bull in the political china shop as there ever was, joining forces with House Speaker Paul Ryan, the nearly equally uncompromising objectivist ideologue, and with Senate Majority Leader Mitch McConnell, the architect of ant-Obama obstructionism. To think that any of these men would offer future rewards for present conciliatory gestures would simply be foolish. If we’ve learned anything in the past few years, it’s that the Republican approach is never to cooperate on anything.

If Senate Democrats filibuster the Gorsuch nomination, it is probable that McConnell will kill the filibuster for Supreme Court nominees. But that result is a foregone conclusion no matter whom President Trump nominates now or in the future, should Democrats resist.

Had Hillary Clinton won not only the popular vote but also the Electoral College, Republicans would still be blocking her replacement for Scalia. Famed anti-Trump "moderate" John McCain, the GOP senator from Arizona, announced in October that Republicans would oppose anyone she nominated to the Supreme Court—a move that would have forced Democrats to end the filibuster to fill any vacancies on the high court. That one-sided game of GOP non-cooperation means that if Democrats ever want to add another liberal justice, the filibuster as applied to Supreme Court nominees is dead anyway. So why not force McConnell to be the one to kill it? The stakes are enormous, and it’s hard to imagine that there will ever be another Republican government with as little inherent legitimacy as this one.

When both players in the Prisoner's Dilemma are rational, cooperation is the wisest strategy. But when one player relentlessly seeks to undermine the other, self-preservation—and even basic self-respect—demand a tit-for-tat strategy of resistance. The upside for Democrats in blocking Gorsuch is that it will further motivate their already fired-up base voters, and force McConnell to be the one to end the filibuster for high court nominees. And the downside to full-scale resistance? Given that Republicans are offering no cooperation of any kind to Democrats, it's not clear that there is one.

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