Download Should Dems Block Gorsuch

The Prisoner’s Dilemma: Why Democrats Should Block Gorsuch
Republican extremism has left its opposition with only one viable choice.
By David Atkins / The American Prospect February 11, 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 antObama 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.
David Atkins is a contributor to the Washington Monthly’s Political Animal blog and president
of the Pollux Group, a research and consulting firm specializing in politics and consumer
technology.