How a Strategist Looks at the Supreme Court Nomination Battle
Reading Time: 5 minutes

In a moment, we’re going to look the Supreme Court nomination of Merrick Garland and find the best strategy for Senate Republicans. In a moment. First, let’s just relax and think about a party. And pretend you’re a paid strategist.

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Party Now or Party Later?

Tim and Mary Johnson want to have a party for their friends. They’ve been talking about it since spring, and now it’s nearly winter. Their condo is too small and the walls too thin for a big party inside, so they decide they must hold the party outside on their patio and common ground. Finally, they decide “it’s now or never.”

Mary and Tim start calling their friends on Tuesday. They invite 20 people to their house on Saturday afternoon for barbecue and drinks. Weather is supposed to be perfect: clear, sunny, 70 degrees, zero percent chance of rain. You couldn’t ask for better day. The problem is, only 15 people can make it this Saturday.

The Johnsons really want all of their friends to be there, so they ask about the following weekend. It turns out everyone can make it the following weekend, so Tim checks the weather on Wednesday. Even though it’s over a week out, the weather the following weekend is expected to be cold with highs in the 40s with occasional rain and drizzle throughout the weekend. Tim knows that forecasts a week out are only about 50 percent accurate.

Before reading on, please write what you think the Johnson’s should do. Should they hold a party this weekend for 15 of the 20 people they want and 99 percent chance of great weather, or should they plan their party for the following weekend when all 20 of their friends can make it but there’s a 50-50 chance they’ll have to cancel it altogether? Please, write your answer and how you arrived at it. I’ll wait. [You should write your answers in the comments below.]

Strategists reduce uncertainty to risk. Uncertainty cannot be quantified; risk can. Here’s how I conclude the Johnsons should hold their party this weekend instead of next week.

  • This weekend, they have a 100 percent chance of a party with 75 percent of their friends. Multiply those values, and you get a party quality of .75.
  • Next weekend they have (at best) a 50 percent change of a party with 100 percent of their friends and a 50 percent chance of no party at all. .5 * 1 = .50.
  • Therefore, with information available on Wednesday, the Johnsons choice is obvious. Seventy-five percent of a perfect party is better than fifty percent chance of a perfect party and fifty percent chance at no party at all.

Answer: Party Now!

Confirm or Don’t Confirm?

And that’s exactly the situation facing Senate Republicans in the confirmation question of Merrick Garland. First, ignore the emotional issues and wishing to “beat” Obama. Think about the issue strategically and find your best strategy.

Let’s say that, as a judge, Antonin Scalia was a 99 on a scale of 100. For comparison, let’s call Ruth Bader Ginsberg a 1 on the same scale. From everything I’ve read, Merrick Garland is about a 75 on that scale, probably like Anthony Kennedy. You might disagree with that, but there’s no way to prove anything. So I’m basing my 75 score for Garland on the descriptions and ratings from several Supreme Court watchers left and right. I’m pretty sure 75 is a good score for Garland.

So if the Republicans confirm Garland, they are fairly certain of adding a judge who’s 75 percent of their ideal.

Now, let’s see if they decide not to confirm.

  • If the Senate holds hearings and rejects Garland, Obama will not appoint someone more to the Republicans’ liking, so we need go no further down that path.
  • If a Republican wins the White House and the Republicans keep control of the Senate, the next president could appoint another 99 judge like Scalia. Let’s call that the best-case scenario.
  • If a Democrat wins the White House and the Republicans keep the Senate, the new president will likely appoint someone more like Ginsburg. Let’s call that a 25 score. And the Senate will eventually confirm someone.
  • If Democrats wins the White House and the Senate, expect the new president to appoint another 1 on the 100 scale.

So what are the odds of each of these scenarios?

I’m going to do some wishful thinking here and ignore the current prediction markets. Prediction markets are far more accurate at forecasting political outcomes than opinion surveys. That’s because asking people who they think will win is more effective than asking who they hope will win. I’m very optimistic and say there’s a 50-50 chance of either party winning the White House and a 60-40 chance the Republicans will control the next Senate. (Prediction markets are far less optimistic.)

(Here’s more on Exceptions vs. Opinion)

Now, we just do the math:

  • Merrick Garland: 75 * 1.0 = 75
  • R President, R Senate: 99 * .5 *.6 = 29.7
  • D President, R Senate: 25 * .5 *.4 = 5
  • D President, D Senate: 1 * .5 *.4 = .2

This formula is pretty simple. It’s just the expected conservatism of the judge (1 to 99) multiplied by the chance of each variable based on my very optimistic values. I use .5 for either party winning the White House and .6 that the GOP will keep the Senate.

You can make the case that you think Ted Cruz will win both the nomination and the general election and that the GOP will keep control of the Senate, but that’s not strategy. It’s daydreaming. If you’re 100 percent certain that Cruz will be the next president, how certain were you in October 2012 that Romney would win?

You can fudge my numbers and try it your way, but only blind wishful thinking will return a result where not confirming Garland becomes a winning strategy. Think the GOP has 75 percent chance at the White House? Okay: 99 * .75 * .6 = 44.55. Confirming Garland is still the strongest play. Give the GOP 75 percent chance at both President and Senate? That’s 55.89, still almost 20 points below confirming Garland now.

I urge you to do the math until you get the results you want. You’ll then make a great government budgeting expert, because wishful thinking is why we have a $19 trillion debt. But it won’t make you a strategist, and our side needs strategy now.

(For more on how the Republican vanguard discourages new blood, read this.)

Strategy, Not Emotions

At this point, the only argument for not confirming Garland is purely emotional: you don’t want Obama to “win.” Fitness to lead requires, at some point, getting over emotional wins and losses and going for real wins using logic and reason.

“But, Bill,” you might say, “if the Senate confirms Garland, then Cruz wins, we’ll have wasted the appointment.” It might seem that way, but think about this: how long will Ruth Bader Ginsburg stay on the bench? And she’s a 1, remember. So let’s say the GOP confirms Garland now. That’s a net lost of 24 points from Scalia. Then Ginsburg leaves the bench and Cruz appoints another 99 to replace her. That’s now a net gain of 75 for our side. Thinking about the next move is critical to strategy, and you’re becoming a more strategic person with every word you read.

Plus, confirming Garland would send a signal to the non-ideological voters that Republicans can get something done. That’s a good signal to send to the 80 percent of voters who are more ambivalent ideologically. That would increase the chances that the Republicans keep the Senate in November.

Finally, I’ll say this. If Garland had been confirmed two weeks ago, he might have ruled with the conservatives on the public union ruling last week. That victory alone would have been huge. But now it’s lost for a generation.

Therefore, I reluctantly say the Senate should confirm Garland to the Supreme Court before Obama withdraws the appointment. It’s nothing personal; it’s just math.

If this post makes you think I’ve lost my mind, wait till you read my new book.

  • authemis

    Are the strategists considering how alienating the base by replacing strict constitutionalist with a left leaning centrist that believes the constitution is a “living document” (I would not rate him at 75, more like 45 from what i hear) I believe that approving this nomination will further alienate those of use who are already questioning the tactics of the GOP come convention time, and may defect if they steal the nomination from the 2 contenders that are running at this time. Does nominating Garland mean less turnout and reduces the chances of taking the presidency. I believe it does and such a simple equation hardly quantifies actual risks involved. One also must take into the account the gun lobby as Garland is as anti-gun as can be. Can you count on the gun lobby to support you if you give the nod to someone who is in stark contrast to this lobby’s belief? I wish things were that simple but they are not.

    • whennessy

      Not considering that at all. Can the conservative base be any more alienated than it is right now?

      Qualifying reactions and behaviors of very large numbers of disparate people is way beyond the capacity of anyone or any system. I tried to quantify what I can and avoid pretending I can quantify things I cannot possibly know. But I do know that neither the Republican establishment nor the conservative base has enough people to win a presidential election unless the Democrat establishment and bases stay home. Which can happen, I just don’t know that it will. And neither does anyone else.

      Plus, if Garland is a 45 as you say, then confirming him is still the winning strategy unless you give the GOP a 70 percent chance of winning the White House and keeping the Senate. That’s a huge stretch. And even that assumes the Republican president will choose a 99–a Scalia clone. I didn’t go into it, but if the GOPe steals the nomination process and plugs in its own candidate who somehow manages to win in November, there’s a very good chance that GOPe president will appoint an Anthony Kennedy clone. (Remember David Souter?)

      Finally, if the strategy is the right thing to do yet it irritates the base, I would do it anyway. Usually good policy becomes good politics, even if it doesn’t seem that way before the leader acts.

      • authemis

        i do think we can be more alienated. I still will vote for either of the 2 front runners right now. I use to love Cruz, but now not so much, but i think i can go ahead and vote him. My vote for trump is basically a complaint directed at the establishment all the way. I support many of his ideas, but fear how much he changes and walks back many of the things he says, even when i support his original statement. I understand he is trying to appeal to the most but will his presidency be putting a finger in the wind? I’m willing to take the risk because the republicans in office are still much worse. Too many missteps could in fact push me to vote 3rd party as the ultimate middle finger expression. Right now i hold that only if the 2 front runners are drummed out come convention time for someone who does not even qualify by their own rules, will force me to go 3rd party or write in. If they approved Garland, I’m fearful many including myself will just wash our hands and no show. I voted for them to stop Obama, and they have stopped nothing. Its getting to the point that there is really no reason to vote.

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