Congratulations, Republicans! You’ve gotten Brett Kavanaugh to the Supreme Court! His face will always be associated with your victory. His ragey, hateful, perjuring, conspiratorial face. You’re him now. Today’s vote to confirm Kavanaugh will work in Democrats’ favor, and eventually America’s as well.
We chose this moment in 2016, as the new president would get to appoint probably two Supreme Court Justices. If Hillary Clinton won, it might have been Merrick Garland and perhaps a member of an underrepresented group on the Court. If Donald Trump won, it’d be two highly conservative white guys. Like, say, Neil Gorsuch, who succeeded Scalia, and Brett Kavanaugh, whom Trump nominated to succeed to soon-to-retire Anthony Kennedy.
On Gorsuch, they lacked a majority in the Senate. Which would not ordinarily have been a problem. Simply by being unified, they would have stopped him, because the rule was simple: You needed 60 votes to get confirmation on a nominee. Because no nominee could be confirmed without bipartisan support, most nominees had bipartisan support.That is, until Republicans came up with a game-changer. Two, actually.
In game theory terms, a game-changer is a strategy that disrupts the rules of a game. When the game-changer arrives, the game itself no longer functions as previously envisioned. It’s not cheating, per se. It’s just modifying how the rules are applied, making it look like a different game entirely. Sometimes it’s because someone does something legal that no one else is doing, such as when dunking became the rage in basketball in the 1950s. Sometimes it’s because the rules get changed to allow something someone can take advantage of, such as the embrace of the forward pass in football in 1906.
The first Republican game-changer came in 2016 after President Obama nominated Garland. The GOP refused to allow his nomination to come to committee, a historic act of obstruction that was totally within the rules. The second, more impactful game-changer came in 2017, when Trump nominated Gorsuch. Faced with a unified Democratic opposition, Majority Leader Mitch McConnell invoked the nuclear option, removing the filibuster requiring 60 votes. Now only a simple majority was needed, and Gorsuch sailed through.
Now the Democrats were in a quandary. The game had changed. Justice Kennedy retired. Kavanaugh, the potential doombringer to Roe v. Wade and Obergefell v. Hodges and everything else Democrats held dear, was up for nomination. Without a new strategy, they’d lose the court for a generation. For weeks it looked like they would not generate such a strategy.
The allegations of Christine Blasey Ford against Judge Kavanaugh were not a strategy. Neither was her insistence on an FBI investigation. Neither was airing multiple other allegations. Those aren’t strategies Democrats understand. What the Democrats discovered was that they had in their hands a far bolder strategy: to let Kavanaugh hang the Republicans.
When Kavanaugh was nominated, the Democrats had a massive chance to take the House and almost no chance to take the Senate. That is, they had effort they needed to spend on the Senate that was being spent on a near-sure thing in the House. Heidi Heitkamp was cratering in North Dakota. Beto O’Rourke was a huge longshot in Texas. Bill Nelson was a tossup in Florida. Joe Manchin is basically a Republican anyway. At best, the Senate Democrats were looking at a 1-in-3 chance, but it felt much less likely.
When facing only a minuscule chance of success, you need a game-changer. You need to get everyone to see you work. But politics is a funny thing: If your people see you succeed too much, they stay home. Enthusiasm is based on what you want to happen, not what you have made happen.
So the Democrats had only one strategy that might work: to turn Kavanaugh’s nomination into a battle for the heart and soul of America’s women. Christine Blasey Ford’s testimony showed that Kavanaugh was a monster; Kavanaugh’s testimony showed that he was the worst kind of monster. He was the second coming of Trump: an entitled, angry, sexually predacious white man. Senate Democrats aimed to stand up against that kind of monster, and show who was on the side of justice. And then they expected him to get on the court anyway.
Wait, what? Wasn’t the goal to make sure he wasn’t on the court? Well, sure, they’d take it if it worked. There was a chance—a small chance—that if they caused a couple Republican defections and voted Kavanaugh down in any of the three votes, the GOP could not get a new nominee in time for the midterms, and there was a chance—a smaller chance—they could win the Senate and then try to hold the seat open for two years.
Then Trump would nominate Amy Coney Barrett, who’s just as bad ideologically but scandal-free and a woman to boot. Who knows, we might have liked her. Then it’d be a fight over litmus tests, and they could lose everything that’s in play in November. We get the same result, but now it’s a woman on the court overturning Roe. That’s no good at all. The fight is against Donald Trump and people like him.
On many levels, it mattered if the gambit kept Kavanaugh off the high court. On a raw political level, it didn’t matter if it worked. The Democrats didn’t lose the votes on Kavanaugh because as the minority they never had the votes on Kavanaugh. There were no bad outcomes to letting Kavanaugh show us what he’s made of. One by one, Senate Democrats—Feinstein, Harris, Klobuchar, Booker, Durbin, Whitehouse—exposed Senate Republicans as defenders of sexual violence. It’s up to women to decide if they want to be represented by men who silence women. True, the record on this is mixed. White women voted 53% in favor of a sexual predator to be president. They might do it again, because this election is about voting for Trump again. They might not.
By unsuccessfully putting everything into stopping Kavanaugh, the Democrats didn’t lose the Senate in 2018—because they never had the Senate in 2018. They were barely in it to get a razor-thin majority; they were never in it to get an impeachment majority. You can’t lose what you don’t have. You can only lose what you do have. What the Democrats had to lose was the House and the soul of America. Now, backed by oceans of rage, Democrats are likely to wave-crush the House Republicans, as satisfied Republicans kick back and relax, pleased as punch with their short-term victory.
The strategy of painting the Republicans as champions of rage against women was a bold one; the GOP was more than happy to death-clutch the mantle. Now Mitch McConnell is done. Lindsey Graham is done. Portrait-of-enabling Susan Collins is for-reals done; her 2020 opponent has raised $3 million already and doesn’t even exist yet. They’re all done.
When Democrats take the House in 2018 and the Senate and presidency in 2020, then the battle for the court will actually begin. We’ll have a president who seriously considers the possibility of court-packing. Kavanaugh might be impeached. The retirements of Ginsburg and Breyer will reshape the court. We will win because we didn’t get Amy Coney Barrett or someone more capable on the court. We will win because the Senate put Donald Trump on it.
Now, that is a game-changer.
This is the twenty-second installment of a series on politics and game theory. It has covered impeachment, Russian collusion, white supremacy, abortion, guns, nuclear war, debt, the NFL, sexual harassment, the Mueller probe, taxes, Trump’s first year, the Clinton Foundation, immigration, parades, the Democrats, hope, family separation, trade wars, Trump’s endgame, and the New York Times op-ed. Those essays are in my book Game Theory in the Age of Chaos, which you can order by clicking the link.