Editor’s Note: Justice Antonin Scalia played a powerful role in shaping American jurisprudence since the early 1980s, first as a member of the United States Court of Appeals for the DC Circuit and then as Associate Justice of the United States Supreme Court. He spent much of his career devoted to public service, inspiring generations of young lawyers and judges. His impact on American law was outsized and his death will leave a deep void in the federal judiciary. The Center for Effective Public Management wishes the Scalia family well during this difficult time.

Justice Scalia’s unexpected death could work a profound change in Supreme Court jurisprudence, for the Court today is narrowly balanced between liberal and conservative wings, with the conservative wing usually able to command a five person majority. Justice Scalia’s votes did not place him at the Court’s extreme right (Justices Alito and Thomas can claim that honor), but on most issues he was as reliable a supporter of the conservative position as anyone with whom he served. If Justice Scalia is replaced by a Justice who is anywhere to the left of Justices Kennedy and Roberts, even one as conservative as Sandra Day O’Connor, numbers of decisions will have a more liberal slant. Much is at stake, and battle lines in a consequential game have already been drawn.

President Obama’s first move could have been more adroit. He appended to his announcement of Scalia’s death, and the praise he included, the pointed comment that he expected to be choosing Scalia’s successor. Surely he could have waited a day and made a separate announcement. But if Obama may have been somewhat gauche, the Republican first move was over the top, calling to mind the slap in the face that initiates a duel. Almost immediately following Scalia’s death, Republicans, led by Senate Majority Leader Mitch McConnell and Senate Judiciary Chair, Chuck Grassley, sought to challenge President Obama’s right to fill the Scalia vacancy, going on to suggest that, should he seek to fill the vacancy, any nomination he sent to the Senate would be dead on arrival. The implications of this position are as unsettling as they are profound. The McConnell-Grassley reaction implies that when a President is in his lame duck year, he is no longer authorized to exercise all the powers of the office. This implication is a repudiation of the Constitutional separation of powers and the Constitution’s definition of a Presidential term.

What is most puzzling about the McConnell-Grassley response is that it was unnecessary. Republicans know how to slow-walk judicial nominations. Some of Obama’s judicial nominations have lingered in committee, or were delayed by filibusters, for a year or more before being put to a vote, and few would be surprised if no additional Federal Circuit Court nominees are confirmed before Obama’s term expires. It is harder to bottle up Supreme Court nominees, and Supreme Court nominations tend to be acted on swiftly, usually taking less than two to three months from nomination to decision. Still the Judiciary Committee could have taken its own sweet time holding hearings on a candidate, and then it could have refused to report out an initial candidate or have voted out a nominee knowing that he or she would first face a filibuster and then be rejected by the Republican majority. This scenario could be repeated with a second nominee if necessary.

The political motivation for a slow-walk rejection would have been the same unwillingness to allow Obama to sway the Court that motivated the Republican leadership’s sight unseen-rejection of any Obama nomination. But the difference is crucial. The mechanism for rejection would have been the Senate performing its constitutional role in the judicial appointment process. Although the suspicion that the Senate’s motives were purely political would have been entirely justified, important appearances would have been maintained.

The Republican response may not be inconsequential. While it most likely foretells the results of any Obama effort to replace Scalia, it changes the space in which the nomination game will be played. In the classic game space, one in which Grassley would have promised to give any nominee a full and fair hearing, Obama would most likely have nominated the person he most wanted to see on the bench, and his nominee would almost certainly have not survived the Senate. Now things are more interesting, and there is an array of Obama moves and Republican countermoves to contemplate. Two Obama moves don’t merit discussion. One is for Obama to listen to McConnell, recognize that no nominee will be approved and submit no name. The second is to nominate a person so conservative that the Republican Senate will confirm. These will not happen.

Among the more realistic possibilities, one is to pretend nothing has changed. Obama might still choose to nominate the person he would most like to see on the Court. If there is such a thing as ethical politics, this should be his choice, for a President should try to seat on the Court the person he thinks best suited for the position. But to do this in the face of the McConnell/Grassley remarks is to invite what is known in the Prisoner’s Dilemma game as “the sucker’s payoff.” This is the payoff when one player cooperates (nominates a well-qualified candidate) and the other player defects (rejects regardless of qualifications). With this choice, Obama not only knows already that his nominee is doomed, but it is also likely that regardless of which party prevails in the presidential race, the winner will replace Obama’s choice with his or her own.

A second approach is the “in your face” option. Obama, feeling he has nothing to lose because no one he nominates will be confirmed, could choose an outspoken liberal as his nominee. The left wing of the Democratic Party would most likely celebrate such a choice, and it would bolster Obama’s image among a segment of the party who feel that he has not been aggressive enough in negotiating with Republicans and defending liberal values. Republicans would, of course, vote down such a candidate and face the least political cost for doing so. Obama does not have Donald Trump’s ego. There is little reason to expect him to take this route.

A third approach, more consistent with Obama’s approach to politics, is the nomination of a responsible moderate, someone not as consistently liberal as some in the Democratic Party (and perhaps Obama himself) might like, but also a person not nearly as conservative as the Scalia replacement a Republican president would choose. Obama might, for example, nominate someone like Merrick Garland, Chief Judge of the D.C. Circuit, a Clinton appointee, and a person often cited as an intellectual leader of the federal bench. Garland is widely respected by lawyers, regardless of party, and his decisions are rooted more in rigorous legal analysis than ideological predilections. Both liberals and conservatives will find decisions of his they like, and decisions they don’t like. Republicans would have a hard time justifying rejection of a judge who in many ways is a model of what a nation that believes in the rule of law seeks. Another option would be to nominate a moderate Republican judge, like Debra Livingston of the Second Circuit. Judge Livingston, a former prosecutor and law professor, was nominated to the Second Circuit by President Bush and was confirmed by a 97-0 vote. How could the Republicans refuse to consider and approve a Judge whom they all supported not too many years ago, and how could they explain their refusal to the nation’s women?

If Obama chooses to nominate a moderate, there is a chance that despite the Republican leadership’s expression of intransigence, the nominee would be confirmed. The situation is akin to what is in game theory is called a “minimax” solution; each side minimizes the maximum loss it will suffer. Democrats see the appointment of a Justice who appears more of a centrist than they would like, but avoid the possibility of a Scalia-like replacement should a Republican win in November. Republicans see the same thing in reverse. They would prefer a much more conservative nominee, but they avoid the risk of a Justice who might side with the Court’s liberals regardless of the issue or even pull them to the left. The business community in particular might prefer the certain appointment of a Justice who could be counted on to consider and understand their side of the story before deciding rather than risk the appointment of a Justice who shared Senator Sanders’ vision of rapacious corporations or who satisfied Clinton’s need to court the Democratic left in preparation for a second term election.

To make the moderate move effective, however, Obama would have to credibly threaten to withdraw the nomination unless it was approved by a date certain. Otherwise the Republican Senate could wait until it saw how the electoral winds were blowing; confirming Obama’s nominee if a Democrat appeared poised to win the presidency and rejecting it if the Republican candidate seemed likely to prevail. Only by insisting on a vote before the election outcome is clear can the attractions of the minimax solution take hold.

Obama’s most aggressive move is to play presidential politics with the nomination. This most likely means nominating a Mexican-American, preferably someone widely respected in the community. This kind of nominee too might be confirmed. If Senate Republicans slow-walked or rejected Obama’s choice, they would risk expanding Latino turnout in the upcoming election along with Democratic Party preferences. Facing this prospect, few Republican Presidential candidates would want to risk opposing the appointment of the another Latino Supreme Court Justice. As a result, a shortened list of candidates for the Republican nomination might pressure their Senate colleagues to approve the appointment, hoping to defuse the nomination as a political issue and perhaps to claim credit for bringing it about. Republican senators running for reelection in states with substantial Hispanic populations might be similarly supportive. Moreover, the line drawn by McConnell and Grassley might soften as they realized that if the Republicans rejected the nominee, their party might be the one enjoying a sucker’s payoff. They could lose both the presidency and the Senate because of their intransigence, and if so they would also see the nominee confirmed. Obama, of course, might want to increase diversity on the Court in other ways; by, for example, appointing the first Asian or first openly gay Justice, but only Latinos are a numerous enough voting bloc to make a substantial political difference.

It is interesting to treat the contest between Obama and the Republicans as a game, and to think about the best strategies for each, and how the moves of one might affect the choices of the other. Yet we are not talking about a game. We are talking about consequential political choices that could change the direction of the law in this country for a generation. Voting rights, money in politics, access to abortion providers, environmental regulation, and much more could turn in the short run on the choice of Scalia’s replacement, although in the longer run there are enough aging Justices that the next presidential election is likely to be more consequential. Now it appears the long and short term outcomes may turn out to be intertwined, for the fate of Obama’s nominee may influence what happens in the election. The “game” being played by Obama and the Republican Senate is, however, one that we, the people, can only watch, though we are permitted to root for our favorite team.

Not replacing Scalia: Game theory in the real world

Brookings Institute

Richard Lempert | February 15, 2016