Here is how one high stakes negotiation is currently playing out: First a recap. On February 13, 2016, Justice Scalia’s unexpected death created a vacancy on the Supreme Court.
Within less than a day, leading Senate Republicans made a pre-emptive opening demand, announcing that they would refuse to consider, even to hold hearings for, any nominee the president proposed.
Next, President Obama announced that he would proceed in the normal course anyway, and he also invited the opposition to the White House, where they meet in the Oval Office on March 1, 2016. Presumably the parties gauged each other’s resolve, presented their respective best alternatives to a negotiated outcome of the dispute, perhaps suggested some ways of reaching a resolution. But no resolution of the dispute was announced.
Both sides then started recruiting allies and public support, engaging in a public relations campaign. The Republicans dug up an old speech by Joe Biden suggesting a similar tactic during the Bush years to the one they are proposing. The president started floating names on his short list to judge public reaction. Senate Republicans stuck to their guns, and appeared unmoved by any of the names on the list.
Finally today, March 16, 2016, President Obama announced the appointment of Merrick Garland. He is the Chief Judge of the most prestigious court in the country next to the Supreme Court, a man with unimpeachable credentials, and a political moderate. Garland is also 63 years old, meaning his tenure on the Supreme Court will be limited.
From the Senate Republicans’ point of view, this is the best deal they could possibly hope to get, assuming that they have to accept an appointment by a Democratic President. Their only better alternative is to elect a Republican President in November, a prospect that has to be regarded as somewhat less than a certainty, and also an outcome of which not all of them are so enamored, given that the Republicans’ leading candidate has been emphatically denounced by both the last two Republican presidential candidates, and that he is likely to transform their party in ways they might not find so comfortable. The implicit threat is that if they don’t confirm Garland, President Hillary Clinton will put forward a new nominee much less to their liking.
President Obama’s tactic is already encountering a small amount of displeasure from his own base, and runs counter to what some other presidents have done when they spar with the Senate over confirmation of a Supreme Court nominee. Reagan, for example, played to his base by putting forward the very conservative Robert Bork, but when Bork was rejected by the Senate, Reagan backed down and submitted the more moderate Anthony Kennedy. When Nixon’s conservative pick Clement Haynesworth was rejected, in a fit of pique he first tried to double down and submit someone even more unacceptable to the Senate, Harrold Carswell, but Nixon eventually relented and appointed Harry Blackmun. President Obama is making the opposite play, giving in to the Senate up front by appointing a moderate, rather than provoking them with a liberal.
Conventional negotiating strategy suggests leading off by demanding even more than you expect the other side to agree to, leaving plenty of room to back down later after the other side’s expectations have been set. On the other hand, there is also a time-honored technique sometimes employed in labor negotiations, sometimes in eminent domain negotiations, sometimes in negotiating contracts with athletes or actors, less often in litigation settlement negotiations, for one side to throw out the best offer (from the other side’s point of view) that they are ever going to make right up front, to let the other side know that the more they haggle, the worse the deal will get for them. The technique has some serious risks, but it has some real strengths also. It makes sense, for example, when time is limited and appearances are important. It appears to be the game the President is playing here. If he chose a more conventional strategy of nominating a liberal judge, there is always the possibility that Republicans could have still defeated him by raising objections on the merits, holding extensive hearings, and running out the clock. Given that the Republicans had already announced that they would not do that, but would instead simply sit on whatever nomination the president made, it makes some sense that Obama put forward a name to which the opposition could have no valid objections on the merits.
Not surprisingly, we are already seeing some backtracking from the Republican side. Maybe, some are saying, we would confirm Merrick Garland in the lame duck session of Congress after the election. Of course that would be inconsistent with the rationale they have been giving for refusing to consider any nominee, which is that it should be up to the president the voters choose in November, but no matter. Allowing a vote in the lame duck would still give Senate Republicans the chance to grab the best deal they can get after finding out whether their alternative looks any better.
So far (it’s still the same day this announcement was made) all we’re hearing from the White House is that there is no reason to wait until the lame duck session in December. But I wouldn’t be too surprised if President Obama’s next negotiating move is to tell Senate Republicans that if they don’t confirm this nominee before the election, his name is going to be withdrawn. Deadlines are also a risky tool in negotiations, but they also can be used as a display of strength. I don’t usually counsel parties in negotiations to employ deadlines and ultimatums, because too often parties need to back down from them when they are tested. The tactic might work in this case, however, depending on how bad the Republicans’ November prospects end up looking this summer. On the other hand, President Obama may feel no need to add additional pressure, and he also probably feels that Merrick Garland would be a great addition to the Supreme Court, even if he has to wait until December for that to happen. In the meantime, it’s been an interesting negotiation to observe.