Game theory is a branch of mathematics that enables the analyst to rigorously analyze a decision problem in order to come to a completely indeterminate conclusion. The game-theoretic accounts of the filibuster question illustrate this axiom. They often start with the idea that Republicans and Democrats in the Senate are playing a repeated prisoner’s dilemma. The Democrats must filibuster the Republicans in order to retaliate against the Republicans for refusing to hold hearings on Garland. Otherwise, the Republicans can get away with cheating. But it’s far from clear that Democrats do best by retaliating rather than attempting to reestablish a cooperative equilibrium (where their payoffs are, by hypothesis, greater). Meanwhile, if the Republicans sincerely think that refusing to hold hearings on Garland was justified retaliation for the Democrats’ elimination of filibusters for lower court judges during the Obama administration, then they will regard the Democrats’ filibuster of Gorsuch as cheating, justifying another round of retaliation, to the Democrats’ detriment. It is possible that the game is not worth the candle for one or both sides. Do Republicans really care if they can no longer filibuster nominees if the Democrats take the presidency and the Senate? How likely is that, and will anyone remember any of this in 2020 or 2024, and more to the point, how do the Republicans know that the Democrats won’t, at that moment, abolish the filibuster in any event?
Then there is the question of cooperation within parties. If the Republicans abolish the filibuster, that will enhance the power of the extremists at the expense of the moderates. Why would the moderates agree to a loss of power? Or maybe the extremists can arrange a payoff of some sort. Democrats who criticize the Gorsuch filibuster argue that they should keep their powder dry until one of the liberals leaves the court, but is there any reason to think that Democrats will have an easier time then? Who knows.
Here is another, simpler way to think about the Gorsuch filibuster. It has nothing to do with inter-party cooperation in the Senate, but is a referendum on Trump.
Confirmation of Gorsuch would be Trump’s first real success as president. If Democrats block confirmation, they will strengthen the impression that Trump is in over his head, a political loser. Everyone will interpret the refusal of Republican moderates to support the nuclear option as evidence of the toxicity of the Trump brand.
If Democrats lose the confirmation fight, then Trump will receive a political boost. But will the boost be greater than the boost that he would have received from a Gorsuch confirmation in the absence of a filibuster? I think not. Gorsuch’s confirmation, in other words, provides an opportunity to express publicly the intensity of opposition to the Trump administration. The filibuster is just the means for expressing a high degree of opposition. Trump is one of the least popular presidents in modern history; what do the Democrats have to lose?