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Contra Nate Silver on Political IQ Tests OR On the Limits of Moneyball Philosophy
Nate Silver, on his new Substack argues that Sonia Sotomayor should retire, and that if you don't want her to retire you're a moron. Some pull quotes:
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Silver's core argument is that Sotomayor, at 70, is old; and according to models the Democrats are unlikely to control both of the Senate and Presidency in the near future, and that therefore Sotomayor should step down now when it might be possible for Biden, Schumer and co to replace her with another Democratic justice.
I find this take to be indicative of the flaws in Nate's own mindset, the Moneyball/Analytics/Sabermetrics venue that Nate comes from applied to politics, and to a certain extent to Rationalism more broadly, so I'd like to dig into why this is so wrong point by point. For the purposes of this argument, I am viewing this from the position of, as Silver defines it, a progressive or a "person interested in progressive outcomes" who would prefer liberal outcomes to SCOTUS cases. We will also assume that Sotomayor is a decent judge. It's not a particularly interesting argument if we argue that Sotomayor sucks, and anyway there's a point about that further down. I've loved Nate since his PECOTA days, I'm not reflexively anti-analytics, but it has to be balanced with humanity.
Much like the Moneyball Oakland As famously put together talented regular season teams that failed in the playoffs, Silver's approach to politics is about grabbing tactical victories, but will never deliver a championship. Sabermetrics types have long derided concepts like veteran leadership, man-management, The Will to Win, clutch play; we can't measure them on the numbers then they don't exist. Yet while analytics have value, so does traditional strategy, team variance isn't entirely random. Let's examine how some of this applies to politics here:
Flaw 1) What Gets Measured Gets Managed Silver builds a toy model, demonstrates that within his toy model SCOTUS seats are really valuable, then assesses possession of SCOTUS seats based on raw-count of votes by partisan appointment. This is an extremely limited view of what impact SCOTUS justices can have. Sotomayor is 70 years old. Going by most projections, she has about 16 years to go. There's some indications of poor health outcomes, balanced by the fact that she'll get top-tier medical care. For reference, Scalia would have been 70 in 2006. Scalia was very important between 2006 and his death. His impact in general has been almost immeasurably huge on American jurisprudence, even the court's liberals owe a lot to Scalia in their opinions. He achieved this mostly by sheer force of will and intellect, and a long stint on the court. Clarence Thomas is another example of a justice who slowly came into his own, and in the last ten years (his age 65-75 seasons) has gone from punchline to influential intellectual force. SCOTUS justices take time to develop, both in terms of their intellectual impact and in terms of their relationships on the court. Replacing Sotomayor early may buy you a few extra years of a nominal democrat on the court, but it may cost you a more influential judge in the meantime. Silver, because his toy model can't account for jurisprudential influence, ignores all this. It's impossible to model, so it is ignored, or worse derided as fake and gay.
Flaw 2) Defeatism Silver derides politicians as irrational, for foolishly believing "their party is on the Right Side of History and has the morally correct answers on the major questions of the day." This is accurate, but also ignores the point: if you don't think your party is on the Right Side of History and has the morally correct answers, then you shouldn't be doing this. The only reason to get into politics is because you think you can win. If you can only lose, you need to change strategies. Silver's models predict that Democrats won't control the Senate for some time; that is within the power of the Democrats to change! Replacing Sotomayor because you likely won't control the Senate for another 16(!) years is like signing a high-priced closer to get a .500 baseball team an extra win, you still aren't making the playoffs. It also ignores history: the Senate has changed hands repeatedly, 8 times since 1980, or roughly once ever six years. If you start from the assumption that the Democratic message is basically unpopular in much of the country, such that they will never hold a Senate majority, then the Democratic party needs to rebuild from the ground up. Don't waste energy lobbying for Sotomayor to retire, lobby for Ds to pull their heads out of their asses in the heartland. If Democrats don't think they can win majorities, they shouldn't be Democrats, and shouldn't care about the SCOTUS majority. If you don't see a path to victory for your project, you need a new project. There's even a sort of "tanking" argument to be made that strategically, 6-3 and 7-2 aren't that different, so it doesn't matter if Sotomayor is replaced by an originalist, and it's politically better for Ds to face a brutally conservative SCOTUS, which might allow them to pass laws to bypass SCOTUS altogether, rather than a mildly less conservative SCOTUS. The only path to a liberal Majority on the SCOTUS is for Ds to win the Senate and the Presidency, repeatedly, they need to be working towards that goal, not maintaining their minority.
Flaw 3) Eliminating the Individual Silver assumes that any D is as good as any other D. That any D Senate is as good as any other D Senate, and any D justice is as good as any other D justice. This is misguided. The D justice that would get past this D Senate is probably going to be a milquetoast, below average, moderate. Sinema and Manchin wouldn't have it any other way, and no Rs have the guts to cross the aisle. If Sotomayor had the opportunity to retire with a 55 or 60 vote D majority, she could be assured of being replaced by a successor with a brilliant career ahead of him. If Sotomayor retires now, she's quite likely to be replaced by a third-rate non-entity. This is the Trump problem that made the original FiveThirtyEight blog unreadable since 2016: Trump didn't just accept the numbers, he changed them. That's what political leaders do: they don't accept facts on the ground, they alter them. Sabermetrics treats the ballplayers like numbers, probabilities of outcomes at the plate, but in order for every MLB player to get to the bigs, to become those numbers, that player had to believe in himself. He had to work hard, thinking he could get better, thinking he could win, even if statistically he wasn't likely to. Nobody ever made it to The Show surrendering to the numbers.
This kind of short-sighted, analytical approach to politics, slicing and dicing demographics to achieve tactical victories, is the noise before defeat. We saw the flaws in this strategy in the Clinton campaign, and to a large extent in the Biden '20 campaign where Trump vastly over-performed his underlying numbers. We're watching Biden '24 sleepwalk towards a possible November defeat, relying on demographic numbers that seem increasingly out of date. And while it's not all Nate Silver's fault, this kind of sneering bullshit is what drives people away from politics. It drives away exactly the people you need: people who irrationally believe in your political project, and will sacrifice for its success. It points away from leadership and towards management. It undermines coalitions by making it obvious they are only ever conveniences. It is bad politics.
TLDR: Nate Silver thinks 70 is a good retirement age for Sotomayor because we might not see a Democratic Senate Majority again for a while, but if we can't get a D Senate for 16 more years, what's the point anyway?
I agree with so much of this, but want to offer one piece of gentle pushback - there's an old sports axiom that you shouldn't do the thing that your opponents want you to do. Don't punt on 4th and 1, don't pitch to Barry Bonds, don't take a race out slow against Mo Farah, don't swang and bang with Derrick Lewis. I'm someone that absolutely despises Sotomayor and the view that the Constitution should be highly malleable to current-year preferences, and what I want is absolutely for her to keep her seat for the moment. This is my preference for purely strategic reasons - if she stays, she may well die and be replaced by someone that views the law much more like I do. If she retires now, it'll be an incredibly stupid spectacle with people insisting that we need another Wise Latinatm and it'll probably be some crank for the Ninth Circuit or something. Regardless of whether you take a Moneyball approach or a trad gut-feel approach, you should generally not give your opponents what they want.
For me, the best argument for her not retiring cynically would be that the goal should not be to game the institutions and that you should stand on the business of insisting that this type of institutionalism should be taken seriously. The problem there is that the left already views the right as having defected from that equilibrium by refusing to confirm Garland and then replacing Ginsberg almost immediately on death.
Your argument for the growth and influence of justices over time makes sense, but the problem really does come down to the object-level justice in question - it doesn't seem like anyone, left or right, sincerely believes that Sotomayor is an intellectual giant that's going to change hearts and minds. I'm sure there's a spin on this from her fans, that it's just that her detractors are a bunch of stupid racists, but it doesn't seem like there's any real disagreement that she's never going to be treated like an important intellectual figure in shaping future courts. This argument would work much better for Kagan, who generally is treated as a serious and influential colleague with incisive perspective by both friends and foes.
I found the perfect metaphor for this scenario after yesterday: the Falcons drafting Michael Penix Jr. 8th overall, after signing Kirk Cousins for huge money in the offseason. All the possible outcomes are bad scenarios for the Falcons. If Cousins is good, Penix never plays, and they wasted the 8th pick, with which there is no question they could have drafted someone at 8 who could help Cousins win. If Cousins isn't good, and Penix actually plays, then they've wasted $45mm/yr for the years they should be benefitting from the cheap Rookie QB contract, undermining the team they could build around Penix if he's good enough to get picked 8 overall.
It's possible that this all plays out fine, and the Falcons are good despite it. Like the Niners and Trey Lance. But they're betting against themselves somewhere. They're either spending $45mm/yr because they're worried they might whiff on the 8th overall pick. Or they spent the 8th overall pick because they were worried they have whiffed on the massive free agent QB contract. The scenarios where things actually work are worse than they would be otherwise.
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Funnily enough, inasmuch as my preference is originalism, I'd expect the Dems to fumble this one and end up with a mediocre judge on the court at best. But looking at that pseudo-majority they're running out there, if I were a Dem I'd be certain that we'd end up handing Trump another pick.
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