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supreme court game theory

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Right now, Senate Democrats have a choice, they can vote to confirm Supreme Court nominee Neil Gorsuch or reject. This choice is complex:

  • How desirable is this individual nominee?
  • How desirable is it to filibuster this individual nominee, even if he is desirable?
  • How desirable is it to punish Republicans for not holding a vote on Merrick Garland?

I think these issues are subtle and interdependent. For example, it is unclear whether Trump would nominate another Scalia type jurist, who is very conservative but does show some degree of independence. Thus, this may be “as good as it gets.”

However, voting in favor of Gorsuch, or simply not filibustering, raises a number of issues for Democrats. First, it essentially confirms a new norm in the Senate. If the President and Senate are from different parties, the Senate can deny the President the power to appoint any Supreme Court justices. This is a real shift. Technically, the power granted by the Constitution is “advise and consent,” not complete denial. Second, allowing the Gorsuch nomination to proceed without a major fight will probably inflame the base. The Democratic base could reasonably ask why Republicans are happy to filibuster and Democrats not so much.

My prediction is that Senate Democrats will allow Gorsuch to be nominated without much fuss because Democratic primary voters won’t punish them. The Democratic base seems to be very ineffective when it comes to punishing deviant behavior. Thus, the marginal Senate Democrat will probably focus more on general election voters in swing states.

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Written by fabiorojas

February 13, 2017 at 12:01 am

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