Further to my observation this morning that game theory argues in favor of Republican obstruction of Judge Garland’s Supreme Court nomination, Bay Area Power Line reader Emmett C. Stanton sends along the following article which he submitted to the San Francisco Comical immediately following the death of Justice Scalia, but which the paper rejected. Here Stanton explains more fully why the logic of “prisoners’ dilemma,” the core exercise of game theory, applies just now (and thanks to Mr. Stanton for allowing us to post up his piece):
Let us assume that the people want their elected representatives to cooperate with one another to nominate and confirm outstanding men and women as Supreme Court justices. And let us further assume that presidents and senators would prefer that time when judicial nominees were not routinely subjected a politicized confirmation process. After all, the Senate unanimously confirmed Antonin Scalia in September 1986, just seven weeks before a mid-term election. A year later, “Borking” entered our lexicon.
Ironically, the first step on the return path to those halcyon days is for the Republican Senate to reject President Obama’s nominee to succeed Justice Scalia.
This unexpected answer comes not from law or history. It comes from game theory, and a series of “tournaments” conducted 35 years ago to determine the most successful strategy for Prisoners’ Dilemma.
The classic Prisoners’ Dilemma assumes the arrest and interrogation of two suspects. The police lack sufficient evidence to convict either, and offer a deal. If they each betray one another, they each serve 2 years in prison. If only one betrays the other, the traitor goes free but the betrayed comrade serves 3 years. If both cooperate and remain silent, they each serve 1 year on a lesser charge.
In the early 1980s Robert Axelrod (apparently, no relation to President Obama’s advisor David Axelrod) conducted several “tournaments” to identify the most successful strategy for a repeated, or iterative, prisoner’s dilemma—a condition more akin to our recurring judicial confirmation process. It turned out that the most successful strategy, the one that eventually resulted in cooperation between the criminal suspects, was “tit-for-tat,” or doing what your opponent had last done, with an occasional undeserved “cooperate” to prevent a destructive cycle of retaliation.
How do we apply this learning to judicial nominations? First, let’s think of the Senators as criminal gangs (admittedly, a thought experiment that isn’t too taxing), operating through their leaders, R and D. President Obama will announce his nominee; preferably, one with unchallenged legal credentials and character, irrespective of ideology. R announces that (almost) all is forgiven respecting past confirmation battles. No more complaining about past delays, recess appointments, filibusters, etc. But before the R Gang can return to that Edenic Garden of Cooperation, it must deal with the Original Defection: the rejection of Robert Bork. R announces that to reach a new State of Cooperation, D’s Bork Defection will be treated as Round 1 in the game, and the current Obama nomination will be treated as Round 2. R votes to “defect,” consistent with the tit-for-tat strategy, and freely discloses the game theory rationale.
Now, there will no doubt be some ugly and painful intermediate iterations before R and D decide it is in their mutual long run interest to cooperate. But that ugliness and pain will be no worse than what R and D have imposed on us for 30 years. And at least we will have reason to Hope that there will be a Change some day.