The Miers nomination as a non-zero-sum game

In terms of governing, confirming her would be worse, for both liberals and conservatives, than not confirming her. In terms of politics, it would be good for the Democrats and bad for the Republicans. So why are Democrats in doubt about whether to oppose this nomination?

Game theorists divide games into two categories “zero-sum” (properly “constant-sum”) games, where the interests of the parties are strictly opposed, and “non-zero-sum” (or “variable-sum”) games, where some outcomes are better, and some worse, for all participants taken together.

Poker is zero-sum; trade and war are non-zero-sum, with trade making both sides better off compared to no trade and war making them both worse off compared to getting to the same result without war.

Zero-sum games are easier to model, and game theorists, ever since von Neumann and Morgenstern invented the field, have spent the bulk of their efforts on characterizing them. One of Tom Schelling’s great contributions was to point out that in the real world zero-sum games are the exception and variable-sum games the rule.

Which brings me to the Miers nomination. There’s a line of thinking developing out there that if Miers is such a terrible choice from the perspective of conservatives, she must be not too bad a choice from the perspective of liberals, and that therefore Senate Democrats ought to vote for her confirmation. That reasoning makes an implicit zero-sum assumption that is unjustified.

Miers has two characteristics — lack of intellectual distinction and subservience to the interests of the Bush clan — that are undesirable from both conservative and liberal perspectives. It’s easy to imagine that the person nominated to replace her should she fail of confirmation would be more intelligent and more independent. So no matter how much conservatives oppose this nomination, liberals should oppose it strongly.

The election game, however, is zero-sum as between the parties; as Mickey Kaus recently pointed out, it’s logically impossible for both Democrats and Republicans to benefit politically from, e.g., keeping Tom DeLay in office. Having Miers defeated or withdrawn can’t be good for both sides (though voting for or against her could be good for individual senators from both sides). But the question “Which party benefits when the President’s nominee fails?” seems to me to answer itself: the opposition benefits.

So in the non-zero-sum game of running the country, it seems to me that both Republicans and Democrats should oppose Miers, though admittedly given GWBs talent for finding and rewarding loyal mediocrity he could indeed come up with an even less distinguished replacement. (Rick Santorum? That would give the Republicans a chance to nominate someone electable in his stead, and Senatorial courtesy would make his confirmation a virtual laydown.) And in the zero-sum game of politics, defeating Miers would be a win for the Democats and a loss for the Republicans.

What I can’t figure out is why this looks like a hard problem. If the issue were ideology, I can understand the need of a Nelson or a Landrieu not to be seen as voting against a moderate conservative; but where’s the electoral risk in voting against putting a sock-puppet on the Supreme Court?

Update Kevin Drum makes a good tactical point: loud liberal opposition to Miers would help her attract conservative support. Now that our aversaries have formed a circular firing squad, we should remain quiet and let them do their work, contributing an occasional suggestion that Miers’s record isn’t very … distinguished. But holding our peace now is one thing; actually voting to confirm is something else. There should be 45 Democratic votes against Miers; if there were, I think there would be a decent case of finding six Republicans to join them.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: