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Here’s $100. Who should be a Supreme Court justice?

Barack Obama and Mitch McConnell
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Barack Obama and Mitch McConnell

Over the next months, we'll see who's the chicken: President Barack Obama or congressional Republicans.

The death of Supreme Court Justice Antonin Scalia has prompted a heated battle over the president's duty to nominate a replacement. With the November elections looming, it's a game of political chicken with a twist and an interesting look at behavioral economics in the real world.

Obama has a number of options. If he nominates a liberal justice akin to his two previous nominees, Sonia Sotomayor and Elena Kagan (who were both confirmed by the Senate), the Republican-controlled Senate has promised to block such a nominee.

But senators might have a harder time explaining it to their constituents in November if they block a moderate nominee. They could be labeled as obstructionists shirking their constitutional duty simply to score political points.

Playing politics

This is a version of what economists call the "Ultimatum Game," a behavioral economics look at bargaining and accepting a piece of the pie. In the game, Player A is given a set amount of money (say, $100) to share with Player B. Player A gets to decide how much to share with Player B, but Player B has the power to reject the proportional split. If Player B rejects the offer, then no one gets anything.

If Player A offers just $1, hoping to keep $99 for himself, it seems like Player B might just take the money. It's free money, after all. But spite and a sense of fairness are strong, and academic studies have shown that about half of people will reject the deal if Player A offers just 30 percent of the total offered.

Supreme blockage

In this simplified version of American politics, Obama has been given $100 (the nomination of a justice to replace Scalia) and he's deciding how much to offer congressional Republicans in the hopes of confirming his nominee before the election in November.

Now, the Republicans have two options no matter who he nominates: confirm or block.

So if Obama nominates a liberal, he's keeping $80 and offering Republicans $20. They're bound to reject that deal, preferring to wait for one more advantageous to them. That could hurt them in the election, but would more likely be read as a response to the political move of nominating a liberal justice. Everyone gets $0.

If Obama instead nominates a moderate, thinking that any say in the matter is better than no say, he's offering $50 while keeping $50. Republicans could take the deal and be content that Obama didn't nominate someone far more liberal. On the other hand, they could evaluate a moderate as more of a $70/$30 deal, which could drive them again to shun Obama's proposal.

It's not quite the "Chickie Run" of "Rebel Without a Cause," but whichever side swerves first has major implications for the future of judicial decisions in our country.

There are some additional folds to this version of political ultimatum:

(1) For the Republicans, the game doesn't end in November. In the traditional Ultimatum, if Player B denies the handout from Player A, no one gets anything. Here, Republicans' shutting down of the process may see an additional payoff. If the country elects a conservative president, he likely would nominate someone more in line with the right wing's views.

Unless, of course, a Democrat like Bernie Sanders or Hillary Clinton is elected. In that case, Senate Republicans' continued blocking of Obama's conciliatory moderate nominee would be foolhardy: They'd surely get a far more liberal justice nominated by a sitting president with a full four years to await confirmation.

(2) The court has a number of cases on its docket for this session that were decided in favor of liberal positions during their previous appeal. If the Supreme Court splits the vote on those cases 4-4, the decision would revert to the lower courts' ruling. Only the parties involved would be bound by that ruling, so the next court could hear a similar case. But that could embarrass Senate Republicans into holding the hearings they've previously vowed against.