Brett Kavanaugh versus Christine Blasey Ford is a classic rashomon: As things stand now, it is not possible for anyone outside of the principals to know what the truth is. If no new information emerges, then whose side you take is most likely to be determined by your priors.
So if you can’t figure out a course of action based on truth or falsity, maybe game theory can help.
Before we begin, we have to identify the goods that the two players—in this case we’ll generalize them as liberals and conservatives—care about. We could fairly say that liberals goals for the game go something like this: Deny Kavanaugh the seat; get the least conservative justice possible; force people to take sexual assault claims seriously; not destroy public respect for the institution of the Supreme Court.
And we could say that the conservative goals are: Seat Kavanaugh; get the most conservative justice possible; deny incentives to bad actors who might be tempted to make false claims about future nominees; not destroy public respect for the institution of the Supreme Court.
Individual agents will order these goals differently, and certainly both liberals and conservatives would say that they take sexual assault claims seriously and do not want to incentivize false claims. But the general framework is good enough to score outcomes.
So now we work through the decision tree. There are only three possible outcomes from the current situation—and again, we’re going to assume for the sake of this exercise that the level of information we have right now remains unchanged:
- Kavanaugh is confirmed.
- Kavanaugh is withdrawn and replaced by a less-conservative nominee.
- Kavanaugh is withdrawn and replaced by a more conservative nominee.
(There is a fourth, theoretically possible outcome: Kavanaugh is withdrawn, Democrats capture the Senate, and they refuse to seat a justice until 2021. But I would argue that this is extremely unlikely because (a) the chances of Democrats taking the Senate are relatively low and (b) if they did capture the Senate, Republicans would almost certainly push a new nominee through during the lame-duck session by arguing that Democrats should not have played games by delaying the vetting of Kavanaugh. I’m not making a value judgment about this course of action; I’m simply saying that it seems likely.)
So let’s go back to the likely scenarios. The first is easy to score: Liberals get none of their goals. Kavanaugh goes to the court where he is likely to be conservative. It will appear to liberals that a sexual assault allegation was unjustly dismissed. And because of this, there will be a cloud over Kavanaugh.
That cloud might seem attractive to liberals in the short term. If Kavanaugh were to be the swing vote, say, on a decision restricting abortion rights, then a divisive moment would be rendered much, much more divisive and the legitimacy of the decision would be tainted for a large part of the country. Which would probably feel like a win for liberals. Except that in the long run it conflicts with their final goal, because it would also diminish the legitimacy of the court, which is the last branch of government in which anyone has real faith. (Not to mention the branch of government that has delivered liberals most of their big victories over the last two generations.)
How do conservatives fare in this scenario? Well, they get Kavanaugh. And he’s pretty conservative. (They think.) But the legitimacy of the court suffers. Because of that, in the short term liberals will be happy with the cloud over Justice Kavanaugh. Which will incentivize bad actors to disrupt future nominations with allegations that have little or no supporting evidence. We could very well end up in an identical situation as we are today with the next high-profile nomination.
Score it: Conservatives 2, Liberals 0.
The second scenario is basically the reverse. Liberals achieve nearly every goal: They get rid of Kavanaugh, they get a less conservative judge, they have taken sexual assault allegations seriously. The only place they fall short is that the institution still takes a hit, because in this case conservatives will believe that the court has been corrupted and, for them, there will be a cloud over whoever takes the Kavanaugh seat.
As for the conservatives, they get nothing: No Kavanaugh, a more liberal justice, incentives for more accusations, and a diminished SCOTUS.
Liberals 3, Conservatives 0.
Which brings us to the final option. What happens if the Kavanaugh nomination is withdrawn and he is replaced with a nominee who can clearly be portrayed as more conservative?
In that case, liberals should actually be pretty happy. They keep Kavanaugh off the court, they ensure that allegations of sexual assault are taken seriously (even without supporting evidence or testimony), and they preserve respect for the institution across the political spectrum.
For their part, conservatives get the most conservative justice possible. The fact that the sexual assault allegation resulted in a more conservative nominee should disincentivize bad actors in the future from making baseless allegations because they will see that it does not get them a better ideological outcome. And again, the institutional reputation of the court is preserved because the eventual justice will have no cloud over him or her.
Conservatives 3, Liberals 3.
The own-the-libs contingent might argue that pushing through with Kavanaugh is the best option because that’s the one where conservatives win. But John Nash doesn’t work that way. In game theory, the third option—pull Kavanaugh and go with a more conservative nominee—isn’t a tie. It’s an optimal distribution because it achieves the most good for the greatest number of people. Everyone comes out of it reasonably happy.
In fact, conservatives get more of what they want in Scenario 3 than they do by simply muscling Kavanaugh through. They get the most conservative nominee possible; they establish a check on bad actors (while also respecting the complainant in this case); and they buttress the legitimacy of controversial decisions down the line which are ruled on by the judge sitting in Anthony Kennedy’s seat. Think about it this way: If you hope that the Supreme Court will restrict abortion in some way, those restrictions would have more legitimacy in the eyes of the public if the deciding vote is cast by someone other than Brett Kavanaugh.
The only thing that would upset this Nash equilibrium is if it turned out that owning the libs was a higher-order good for conservatives than any of their other goals. Which, to be fair, is something probably we can’t rule out.
