Opinion | Judiciary

A game theorist's advice to President Trump on filling the Supreme Court seat

I have worked for over 30 years in competitive strategy. I teach it to future business and policy leaders, diplomats, global development leaders and social entrepreneurs. I have been a leader of the competitive strategy practices in two influential global consulting firms, where I advised CEOs, boards and policy heads. My academic training is as a game theorist, the science of figuring out your next move while anticipating the competitor’s moves to follow. Despite these credentials, I have never been invited to advise Donald TrumpDonald TrumpHouse passes voting rights and elections reform bill DEA places agent seen outside Capitol during riot on leave Georgia Gov. Kemp says he'd 'absolutely' back Trump as 2024 nominee MORE on competitive strategy.

But as an unpaid, uninvited advisor, here is my recommended strategy to the president. His best bet now is to turn his back on Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellGarland's AG nomination delayed by GOP roadblocks DOJ declined to take up Chao ethics probe Trump was unhinged and unchanged at CPAC MORE (R-Ky.) and leave the Supreme Court seat vacated by the passing of Ruth Bader GinsburgRuth Bader GinsburgBill introduced to create RBG monument on Capitol Hill Kavanaugh dismays conservatives by dodging pro-Trump election lawsuits McConnell backs Garland for attorney general MORE unfilled until after the election.

Of course, that is not the course he is taking. I am sure, curious person that he is, he would ask: Why?


Before I answer that question, let me share what, in my opinion, game theorists would call a dominant strategy for Democrats. Commit to a credible threat: Promise that if they win the White House and Senate, they will abolish the filibuster and expand the size of the Supreme Court if the Republicans push through a new justice in the lame duck period. This is what my own senator, Ed MarkeyEd MarkeyHillicon Valley: High alert as new QAnon date approaches Thursday | Biden signals another reversal from Trump with national security guidance | Parler files a new case Senators question Bezos, Amazon about cameras placed in delivery vans OVERNIGHT ENERGY: House Democrats reintroduce road map to carbon neutrality by 2050 | Kerry presses oil companies to tackle climate change | Biden delays transfer of sacred lands for copper mine MORE (D-Mass.), has promised. The rest of the party needs to join him. Sen. Kamala HarrisKamala HarrisMichelle Obama says 'everyone was concerned' about potential violence at Biden inauguration Ella Emhoff, inauguration designer join forces on knitwear collaboration Who is the Senate parliamentarian and why is she important? MORE (D-Calif.), Joe BidenJoe BidenThe West needs a more collaborative approach to Taiwan Abbott's medical advisers were not all consulted before he lifted Texas mask mandate House approves George Floyd Justice in Policing Act MORE's running mate, is warm to the idea of expanding the court. This could neutralize a conservative tilt to the makeup of the court. Of course, this is risky. Biden has not been supportive of such “court packing” proposals in the past — but now the game has changed.

For Democrats, this is a no-lose strategy, as it will maximize voter energy around a galvanizing cause. The issue would bring more voters to the polls and bring more support to the party. The signs of such momentum are already evidenced by recent developments. ActBlue’s live tracker, which tallies Democratic fundraising numbers in real time, showed $6.3 million raised in the first hour after news of Ginsburg's passing — more than any other one-hour time frame since it launched 16 years ago. The organization also broke its all-time record in money raised in one day. Between 9 p.m. ET on Friday when the news broke and 9 a.m. ET on Saturday, more than $30 million was donated to Democratic candidates and causes.

If the Democrats were to go all out in making the radical commitment to abolish the filibuster and expand the court should the Republicans fast-track appointing a new justice, it would increase the chance of turning the election in their favor.


In anticipation of such a Democratic strategy, Trump would risk firing up the vote in favor of Democrats by appointing a judge now and having any advantage being nullified after a Democratic sweep.

Instead, he can tamp down that fire by promising to appoint the judge after he gets re-elected. Such a move would disappoint those who would like a conservative judge appointed while Trump is still in office. But it would, in turn, fire up the campaign to re-elect Trump by giving it a renewed urgency, which it currently lacks. By jumping the gun now, Trump lowers the chances of his reelection and increases the chance that the Supreme Court gets re-balanced by the Democrats sweeping to power and packing the court by adding extra seats and appointing liberal judges.

Thus, my advice to the president: Make the case for reelection and make the appointment of the Supreme Court justice an essential reason for a second term. It is highly likely, as many analysts have suggested, that that is what contributed to the Trump win in November 2016.

This may be the one instance where taking the high road may actually be in the president’s own best interests. And, oh, it may also be in the best interests of democracy.


Bhaskar Chakravorti is dean of global business at The Fletcher School at Tufts University. He is founding executive director of Fletcher's Institute for Business in the Global Context, where he has led the Digital Planet research initiative for a decade.