How to fix the judicial confirmation process (this ain't gonna happen)

 I teased this post during the week, so here it is.  Sen. Mitch McConnell (R-KY) has now dispensed with all pretense.  In a way, I appreciate this since I have little patience for pretense, but unfortunately, this means the political system must now grapple with the GOP's formal announcement of a strategy that is so fundamentally incompatible with the US constitutional order that there can be no way forward as long as the GOP pursues it.  The Republican Party will no longer confirm Democratically-nominated judges (presuming they hold the Senate, as they likely will after the 2022 midterm).  This is an apocalyptic announcement.  We used the term, "the nuclear option," for the Senate maneuver by which the majority party ignored the rulebook to abandon the filibuster for judicial and executive branch nominations, but make no mistake-- this is far more dangerous, and far more deserving of apocalyptic terminology.  Turning the Senate into an institution where might-makes-right, "might" being defined as majoritarianism in violation of formal rules, is a thing that we can debate.  However, since plenty of systems survive without filibusters, it would be a tendentious at best to claim that it is the end of the world to use the nuclear option.

On the other hand, we cannot have a political system that operates under McConnell Rules.

Let's just go through the mechanics.  First, divided government is normal in American politics.  There are a variety of reasons why, but consider the years from Ike, on.  Since we are concerned with confirmations, fuck the House.  The Senate matters, and the House is nothing more than a roach motel, filled with the rotting corpses of insectoid vermin who checked in years ago, and will never check out.

Ike had Republican control of the Senate for the first two years of his administration, then 6 years of Democratic control.  Under McConnell Rules, he couldn't have appointed anyone after his first two years.  JFK and LBJ did have Democratic control.  Neither Nixon nor Ford had Republican control at any point in their presidencies.  Under McConnell Rules, they couldn't have appointed anyone.  Carter had Dems.  He could have made appointments.  Reagan had six years of Republicans, and then two years when he couldn't have made appointments.  Poppy Bush couldn't have made any appointments under McConnell Rules.  No GOP control of the Senate in his administration.  Clinton?  He had the Dems for two years, but after that, six years without the ability to make any appointments under McConnell Rules.  Bush the Younger?  He had basically five years, prior to the Jeffords party switch, and between the 2002 and 2006 elections, but about three years without the ability to make appointments under McConnell Rules.  Obama actually would have had six years, but hey, remember how Ginsburg was a narcissistic fool?  Just sayin'... Trump would have had a full four years.

OK, so during 33 years out of 68 with presidents from Ike through Trump, presidents would not have been able to make appointments under McConnell Rules.  Basically, half.

Does this seem like a stable system to you?

And of course, there's a Senate bias at the moment.  A lot of "biases" are bullshit, but this one's real.  There's a GOP bias.  So right now, the GOP would be OK with something like this system, because it favors the Republicans.  Of course, nothin' lasts forever, but nobody reads John Rawls anymore, and even the left now says John Rawls was secretly part of a conspiracy to impose "white supremacy," or some such bullshit.  (Morons, all.)

Nevertheless, this is not a stable, viable system.

Of course, the US political system is no longer a stable, viable democracy, but let's fuck around with something bordering on a science fiction conceit in order to design a "fix."  Not like fixing a fight, but actual repair.

Let's start with a proper diagnosis of the problem.  The problem is the following strategy, injected into the system by McConnell.*  If the opposing party controls the White House, but you control the Senate-- a common split-- blockade a vacancy in the hope that your party wins the next presidential election, and control of the Senate, so that you can fill the vacancy.

Here's what's going on.  Prisoner's dilemma.  Basic game theory.  Two crooks are picked up for a crime, and separately interrogated.  They are each given a choice.  Rat each other out, or stay mum.  If they each stay mum, the cops have enough to put them each away for some minor crime.  They each do two years.  If they rat each other out, they each get five years.  However, if one rats out the other, the rat gets away scot-free, and the patsy does ten years.

In a one-shot game, the solution is for each prisoner to turn rat.  They each get five years.  Why?  No matter which strategy the other prisoner is playing, you do better by being a rat.  So, being a rat "strictly dominates" staying mum.  Basic game theory.

However, if we introduce indefinite repetition, we enter the realm of what we call "the folk theorem," wherein other strategies become viable.  We can tell each other, let's stay quiet, but if you rat me out, I'll rat you out to punish you.  With indefinite repetition, all sorts of strategies can occur in equilibrium.

This is very important for the Senate, also known as the home of people who live for fucking ever, never leave the job, and have to keep dealing with each other, year after year after fucking year.  Translation:  indefinite repetition.

Notice that in the one-shot interaction, it is optimal to turn rat, but if everyone turns rat, everyone is worse off.  This is because the equilibrium solution is not "Pareto efficient."  It's just that this doesn't matter in strategic terms.

Until you enter the realm of indefinite repetition.  Then, you and I can notice that if we keep fucking each other over, all that happens is that we're repeatedly fucked and fucked and fucked, and not in the nice, dinner bought beforehand way.

If everybody in the Senate uses every tactic they can, to take every short-term advantage they can, in the end, everyone gets fucked.

This is why the Senate didn't start out this dysfunctional.  It took a maximum fucking shit-covered asshole like McConnell, smearing himself all over everything, like a dyspeptic pet.  Previous Senators understood that if they used every power available to take maximum partisan advantage, everything would look like the house of the owner of that pet.  It's just that all Mitch cares about is getting that shit off of his ass.

And now, we're stuck with floor and walls covered in shit.

The solution, of course, is not to let animals into the Senate.  But it's too late for that.

So what do we do?

Let's turn to the game theory.

The problem is the blockade strategy, which is predicated on the notion that if the party out of the White House holds the Senate, it can hold open a vacancy with the hope that it wins the White House and Senate soon, giving it the opportunity to fill the seat.  Once we enter the world in which this strategy becomes the norm, getting back to restrained behavior doesn't work, for the same reason that prisoners who devolve into endless ratfuckery cannot get back to cooperation.  An institutional reform is necessary.

What must be accomplished through institutional reform?  It must remove the payoff for the blockade strategy.  Right now, the payoff for the blockade is probabilistic, but it is there.  If the ratfuckers win the next election, they get a Supreme Court seat that they would not otherwise have gotten.  How do we prevent this?

Raise the confirmation threshold.  In my initial post, I suggested a confirmation threshold of 90%, but currently, I am thinking 80%.  There is no formal derivation here.  The number comes from trying to balance two goals, which are somewhat in tension, but can both be met.  First, the threshold must be so high that there is no chance whatsoever that either party will ever achieve that level of control.  Second, there must be enough leeway to account for the fact that there will be some insufferable fucking douchebags in the chamber, who are just going to vote no because, like the Joker in Christopher Nolan's The Dark Knight, they just want to watch the world burn.  Let's go through the mechanics, in basic form.

Suppose we had a threshold of 80% for confirming Supreme Court justices.  If McConnell, or any party leader pulled what McConnell is now saying he will pull on Biden-- which he already pulled on Obama-- what would happen?

Well, remember when McConnell pulled that shitbaggery with the Scalia seat?  It wouldn't have worked.  Sure, he would have successfully blocked Merrick Garland's confirmation, thereby freeing the guy up for the job of acting as Trump's new defense attorney (told you so!), but even after Trump won in 2016, the GOP didn't come anywhere near 80 seats in the Senate, and since McConnell was being the lowest sack of fucking shit in the history of the universe, he wasn't going to get bipartisan support to confirm Neil "The Plagiarist" Gorsuch.

Translation:  there's no prize to claim.  No payoff.  Why?  Because the 80% threshold guarantees that no matter how an election turns out, the other party can punish you for being McConnell.

In fact, Kavanaugh and Barrett couldn't have been confirmed either!  Kavanaugh being a rapist, and Barrett being another stolen seat, but we'll get to them.  On the other hand, remember how Scalia was confirmed 98-0?  We'll come back to that too.

Point being, the 80% threshold takes the McConnell strategy off the table.  Why?  It guarantees the opposing party's capacity to respond in kind, regardless of who wins the Senate.  That's the trick right now.  If the blockading party wins both the White House and the Senate, post-nuclear rules (yes, I'll address the filibuster, nuclear options, etc.) allow the victorious party to claim a big prize.  An 80% threshold for confirmation would take away the ability to claim any prize by guaranteeing the opposing party's ability to respond in kind.

There is a bunch of game theory underneath this.  We'll start with Robert Axelrod, The Evolution of Cooperation.  We've already covered the basics of the Prisoner's Dilemma, but here's what Axelrod did.  He created a set of tournaments for computer programs in iterated Prisoner's Dilemma games.  Which strategies did better in iterated play, in the tournament?  What did best in his tournament was tit-for-tat cooperation.  The program cooperates, but then responds to defection by punishing the other player for one round, then returning to cooperation.  Yet Axelrod found a strategy that would have won, had someone entered it.  Nobody did.  A strategy that forgave for a round.  Why?  Basically, what is very dangerous for everyone is going down the path towards mutual defection.  Why?  Because what you actually want is to get back to cooperation.  Getting to defection is easy, and bad.  Getting back to cooperation is difficult, and important.

Here's the thing.  There's a strategy that works very well in human psychology, if you can make the point.  But it's different for computers.  Maximal punishment.  If you rat me out in even one round, I'll rat you out until the end of time.  If I can convince you that this is my strategy, in advance, then you'll cooperate.  The trouble is that I can't, most of the time.  And computers can't.  So when all the players can do is go round-by-round, you wind up with odd sequences.

And sometimes, a bad path is taken.  If a computer enters the maximal-punishment strategy into the tourney, it does very badly.  Both programs score poorly as a result.

The trouble is, we have taken a bad path.  Thanks, Mitch, you subhuman fucking piece of shit that is too toxic even to fertilize!  Yeah, "dehumanizing" people is supposedly a bad thing, but Mitch McConnell is really, really, really bad.  Worse than you can understand unless you study game theory.  He belongs in the special category of entities you are allowed to "dehumanize."

Because once cooperation breaks down, it is very hard to get back.  That's why the one-round forgiveness would have won Axelrod's tournament had it been entered.  It's just too late.

We are where we are.  And since we are where we are, institutional rules are the only substitute.  So we revert to the principles, not only of maximal punishment, but of taking away the gains of being a fucking rat in the first place.  The structure of the game itself needs to be changed, because McConnell will always be a psychopathically evil shitbag, and having destroyed all comity and cooperation, only rules could ever resolve anything.

The rule that takes away the payoff for being a fucking rat piece of shit.

Next reference, James Buchanan & Gordon Tullock, The Calculus of Consent.  At the moment, whiny, little lefty children yammer about how they hate the filibuster, and they're into majoritarianism, and yadda-yadda-yadda.  A) Fuck that, b) nobody believes in majoritarianism, and c) let's explain why majoritarianism is a problem.  Or rather, let's recap the Buchanan & Tullock explanation.  They do a bunch of fancy math that can be summed up by four older and more familiar words:  tyranny of the majority.  If the threshold for passage is 50%+1, then 50%+1 can infinitely exploit 50%-1.  Confiscate all of their property, enslave them, kill them, whatever.  The whole point of civil rights and civil liberties is that they are anti-majoritarian, so that no matter what a majority wants to do to the minority on those points, they can't and fuck the majority.

Fuck 'em.

And if you're some woke lefty pointing to one set of public opinion polls for one issue, lemme guess.  You hate that Florida bill on transgender kids in sports, right?  Did you notice that DeSantis mentioned the polls?  Were you swayed on the moral rightness of DeSantis's position by those polls?  No?  Well... then maybe you should rethink the question of whether polls constitute a legitimate policy argument.

"The polls are on my side, so I must be right!"  Nobody in history has ever followed that principle consistently.  So stop it.  At least you won't be a hypocrite anymore.

Where was I?  Oh, right.  The tyranny of the majority.  According to Buchanan & Tullock, the only non-exploitative voting rule is unanimity.  Of course, unanimity is never practical.  It is subject to what I call "the one-asshole problem."  All it takes is one asshole to stop anything.

So here's a joke I tell, every time I teach Congress.  A group of lions is called a pride.  A group of geese is called a gaggle.  You know what we call a group of assholes?  A Congress.

Once upon a time, the Senate functioned on "unanimous consent agreements."  Unanimous consent agreements did things like... limit debate times so that cloture didn't need to be invoked!  The point at which the Senate stopped functioning was, generally speaking, the point at which they could no longer get UCAs.  Why not?  The one-asshole problem.  And then the assholes started egging each other on, with McConnell as their apotheosis.  Mitch McConnell:  Apotheosis of the prolapsed anal sphincter.

See, this is what people miss by not reading my weekend ramblin's, and instead reading the more staid and "dignified" commentary of people who have editors.

Anyway, though, it's the Senate.  They don't have one asshole.  They have 100 of 'em.  An embarrassment of riches assholes.  Except, um... yeah.  It really is embarrassing.  So we can't have a unanimity rule.  I mean, Scalia was confirmed 98-0, but that was a different time.  The assholes had yet to prolapse.

So what about an 80% threshold?  It does mandate bipartisanship, which is functional unanimity when we think of things at the party level, meeting the Buchanan & Tullock criterion in a way, while still dodging the one-asshole problem.  In fact, there can be 20 raging, prolapsed assholes on any given vote, and the system doesn't collapse.

The point is that nobody can gain anything by gainsaying.

Is there, within this system, room for a party to say no to an individual nominee?  Say, if that nominee is a soon-to-be-living-the-rest-of-his-career-in-a-drunken-stupor-rapist-motherfucker?

Here's the thing.  No party can simply say, we don't like this asshole just because he's an asshole.  Scalia was an asshole.  Were it not for the fact that Barrett's seat is a stolen seat, a reasonable party could not reject her, even though she's fucking psycho.  Not fucking psycho enough to buy into the latest of the bullshit Obamacare lawsuits, but still fucking psycho.  She's qualified.  And indisputably so, with no record of drunken rape attempts, or anything like that.  She's smart, qualified, and all that.

Suck it up, confirm that kind of nominee.  The problem with Barrett is that her seat was stolen.  McConnell introduced a rule.  We all knew, with 100% certainty (and I am a statistician who doesn't use 100% certainties) that McConnell was lying just as egregiously as Donald Trump does, every time that festering pustule bursts forth some new infection onto the body politic, when he claimed it was a "rule" that there shouldn't be any confirmations during election years.  We knew he'd break the "rule" for a Republican, and anyone who thought he'd adhere to his own "rule" with a Republican should be disenfranchised, and have his driver's license taken away.

I don't want to be on the road with you if you're that fucking imbecilic.  No voting rights for you, no driving rights for you, and you should probably be locked away with a gag or a muzzle because every time such people speak, they detract from the sum total of human knowledge.

Yes, we knew, with absolute, 100% certainty, that McConnell was lying, and that he'd break the rule for Trump.

Kavanaugh?  That rapist motherfucker shouldn't be on the Court.  As an example, but the point is that under this kind of rule, the only legitimate standards for blocking a nominee would be something like stupidity (remember Harriet Miers?), being a drunken rapist (like Kavanaugh), or something like that.

And what if a party breaks from this?

With an 80% threshold, here's the thing.  Reciprocity gets so fucking dangerous, so quickly that there are a couple of paths here.

Path 1 is a return to actual advice, as part of "advice & consent."

Path 2 is "down quickly in flames."

Basically, if more than 20 Senators fail to show restraint, the Judicial Branch collapses.  Those 20 Senators gain nothing.  Just... system failure.  The thing is, what does it mean to show restraint?  Since this is about reciprocity, that is in the eyes of the other party, to some degree, and that means we have to think about something like Kavanaugh.

Right now, in the existing political environment, most Republicans believe/tell themselves that Kavanaugh is the most innocent person in the history of innocence.  Of course, they also tell themselves that Trump won the 2020 election, their new conspiracy is the claim that January 6 was staged by the FBI, and I can't even keep track of all the crazy shit they say.  These people are fucking nuts.

The question is whether or not the Kavanaugh process was, what we call, "endogenous."  Fancy word, meaning, determined by the existing system.

So, thought experiment.  First, understand that a significant factor in the Kavanaugh process was... Trump.  As a serial rapist himself, he will always defend the rapist.  (Well, if the rapist is a Democrat, suddenly he becomes a "believe all women" feminist, but basically, if there is a rape accusation, take away party, and he'll immediately side with the accused.  The stronger the evidence gets, the more he sides with the accused.  Why?  He's a fucking rapist.)  A normal president probably would have withdrawn the nomination.  And under an 80% rule?  It's way easier to just withdraw the nomination.

There are many ways in which Trump was demonstrative of the direction of the modern Republican Party.  Lying, conspiracy theories, authoritarianism, race-baiting, xenophobia...

But the Kavanaugh thing was about the fact that Donald, personally, was a rapist who just has such a strong affinity with his fellow rapists, combined with the belief that he can never, under any circumstances, admit defeat.

Hence... January 6.

So there was a lot about Kavanaugh tied to Donald as a uniquely dysfunctional person.

Nominees have been withdrawn in the past.  This wasn't just the insanity of the modern GOP.  This was Trump.  Sometimes it is hard to tell the difference, but I do think this is one of them.

The point, though, is that the bar must be high, and the opposing party must convince the majority party that it is adhering to a high bar in order to not go down Path 2.  With Trump, "down in flames" was just... well, January 6.  I mean, he's fucking Trump.  Let's deal with this as a system, which means analyzing it from the perspective of players who aren't inevitably going to burn things to the fucking ground because they're pyromaniacs.

With advice and consent, you simply have a minority party that has to go back to sucking it up and accepting nominees like Scalia.  And even Barrett, when the seats aren't stolen.  Yeah, Alito pulled some stupid shit this week, but him too.  He's qualified, and you know it.  In order for the system to work, you need to accept that a president gets to nominate people like that.

Fucking deal.

To repeat:  Scalia was confirmed 98 to nothin'.

You want a working system?  You need to have Democratic senators who are willing to confirm nominees like that douche, Alito.

So let's do a quick recap of the basic principles.  An 80% threshold would take away the McConnell maneuver by guaranteeing the opposing party the ability to respond in kind, no matter who "wins" the Senate, because no election will ever give either party enough seats to reach that threshold, and pulling a McConnell guarantees full opposition from the other party when you try to fill the seat yourself.  Does it necessarily mean "moderate" justices?  Not really.  See: Scalia.  However, in order to avoid the system going down in flames, it would force restraint.  It takes advantage of the principles from Buchanan & Tullock on non-exploitative voting rules while accounting for the one-asshole problem.  And, since the Senate has shown that it cannot prevent itself from going down the defection road in an iterated Prisoner's Dilemma, the only solution is the institutional one.

Two questions, then, present themselves.  How is this different from trying to restore the filibuster, and how would I propose to implement it?  (The questions are actually related.)

The proposal differs from the filibuster, first, in the threshold.  Until 1917, there was no cloture rule in the Senate, so if a small minority wanted to defeat a proposal-- any proposal-- they could do so.  In 1917, the cloture rule was introduced, with a 2/3 threshold.  That threshold was reduced to 3/5 in 1975, and then the nuclear option eliminated the filibuster for judicial confirmations below the Supreme Court in 2013, and then for the Supreme Court in 2017.  An 80% threshold is higher than the threshold under the 1917 rules.  It is similar to a pre-cloture rule because the threshold is so high, and this is important because it is, actually, possible for a party to get 60 seats.  The Democrats won 60 seats twice in recent years.  After the 2008 elections (once Arlen Specter switched parties), the Democrats had enough seats to invoke cloture on a party-line vote.  The 1976 election, many forget, also gave the Democrats enough seats to invoke cloture on a party-line vote, although the party was more ideologically divided.  However, the issue is that 60 seats is within reach.

80 is not.

The threshold should not be within reach.  The threshold must take the McConnell strategy off the table completely.  It must require working with enough of the other party that McConnell shitbaggery simply cannot happen anymore.

And before any potential detractor says, "but wait!  Reid used the nuclear option first!," let's get something straight.  Reid used it because McConnell put a blockade on the DC Circuit, insisting that Barack Obama, alone among presidents, was not allowed to fill vacancies on the second-most important court in the country, so the Democrats could either hand the second-most important court over to the GOP entirely, or go nuclear.  McConnell knew exactly what he was doing.  Yes, that was McConnell's doing.

If you want to understand why the Senate is a shitshow, the answer is:  McConnell.

Anyway, the point is that 80% is functionally different.

Implementation begs the question of difference as well.  In theory, the Senate could adopt a rule-- a formal rule-- stating that judicial confirmations require 80%, and moreover, that changing this rule would require 80%.

Of course, even with that second proviso, that "rule" would still be subject to the nuclear option.  Some putrescent obscenity of a "human being" may come along, occupy the office of Majority Leader, and declare that this seat is special, and that the 80% rule doesn't apply to it.  The minority objects.  A vote is called, and it only takes a majority vote to uphold the Majority Leader's ruling.  Total bullshit?  Yup, but that's how the nuclear option works.

Writing the 80% threshold into the rules, along with the rule change threshold, might reduce the likelihood, but the option is still there.  It's always there.

Unless the 80% threshold is written into a constitutional amendment.

Then it'd be different from the filibuster because it wouldn't be subject to the nuclear option.

And in a way, it would be more like real nuclear deterrence, cold war-style, in the Senate.  During the Cold War, it stayed cold.  We never had a hot war with the Soviet Union.  Why not?  It would have destroyed everything.  Yes, I am basically advocating turning the judicial confirmation process into that.  Understanding nuclear deterrence was actually a real, scholarly problem until Thomas Schelling came along, and published one of my favorite books, The Strategy of Conflict, but it did work.

You know what isn't working?  This.

Why not?  Because the minority party has no tools with which to fight back.

The filibuster was that tool.  What you are seeing is the dysfunction created by taking it away.  This is what McConnell has wrought.  This needs to not be an option.

An 80% threshold would make this not be an option.

Will it happen?  Fuck no.  There is zero chance that this happens.  There is zero chance of a constitutional amendment passing, and there is zero chance of me convincing anyone of this even if any constitutional amendment could pass, so the idea of passing a constitutional amendment on a proposal that most people would find insane?

Yeah, that's about as ludicrous as the premises of the sci-fi novels about which I often comment.  Ain't-a-gonna happen.

Instead, the political system will keep burning.  Anyone got any marshmallows?

And music.  Lindsay Lou & The Flatbellys, with a performance of "The Fix."  The studio version is on Ionia.

*When the epitaph for American democracy is written, it will read:  "Murdered in cold blood by Mitch McConnell."  I keep writing it because it's true.