The Senate Judiciary Committee’s inexplicable advancement of Todd Blanche’s nomination for attorney general—who is now, according to Politico’s Chris Marquette, only one vote shy of Senate confirmation—has me thinking about the anchoring effect, a topic explored by the psychologists Amos Tversky and Daniel Kahneman in their 1974 paper, “Judgment Under Uncertainty: Heuristics and Biases.” The piece is a foundational work in the field of behavioral economics; it led to Kahneman winning the Nobel prize for economics in 2002 (even though Kahneman wasn’t an economist).
“Heuristics” in this context means “mental shortcuts,” and Tversky and Kahneman spent their careers demonstrating that these tend to follow seriously bad logic. They were especially fond of showing how bad heuristics can be when it comes to math. If you haven’t read Michael Lewis’s delightful joint biography of Tversky and Kahneman and their ideas, The Undoing Project, published in 2016, I recommend it highly. Kahneman also popularized his research with Tversky in his 2011 best-seller, Thinking Fast and Slow.
“In many situations,” Tversky and Kahneman wrote in their 1974 paper, “people make estimates by starting from an initial value that is adjusted to yield the final answer.” That’s anchoring. These initial estimates, Tversky and Kahneman, are pretty arbitrary and extremely susceptible to suggestion. In one experiment, they spun a wheel of fortune and then asked participants whether the percentage of United Nations delegations that represented African countries was higher or lower than that anchor number. They then invited participants to guess what the real number was. When the anchor number was higher, the guesses were higher, and when the anchor number was lower, the guesses were lower, even though the anchor numbers were arrived at through transparently arbitrary means and had zero bearing on the real answer (which, incidentally, is 28 percent).
Christopher Voss, a negotiation expert and author of 2016’s Never Split the Difference: Negotiating As If Your Life Depended On It, writes of extreme anchoring, citing Tversky and Kahneman and taking it one step further. If you’re negotiating over something and you let the other guy bid—that is, you let him anchor—then “you’ve got to be careful”:
If the other guy’s a pro, a shark, he’s going to go for an extreme anchor to bend your reality. Then, when they come back with a merely absurd offer it will seem reasonable, just like an expensive $400 iPhone seems reasonable after they mark it down from a crazy $600.
Voss, who used to do hostage negotiation for the Federal Bureau of Investigation, advises strongly against extreme anchoring because “your reputation precedes you” and if you get a reputation for making preposterous demands nobody will want to deal with you. What goes around comes around. Point taken.
On the other hand, you might end up in the Oval Office.
President Donald Trump is a dedicated practitioner of extreme anchoring, having learned it (according to Kai Bird and Susan Goldmark’s excellent new biography, American Scoundrel) from the reptilian McCarthyite and mob lawyer Roy Cohn. Cohn’s terrible reputation preceded him, which led, among other things, to multiple indictments (though no convictions). Cohn learned early on that people weren’t going to like him and he made his peace with that. Trump’s terrible reputation precedes him, too, and it’s cost him over the years in certain business sectors like banking. Even Trump’s fellow Republicans don’t like him much. You’d think that would be a liability in elective politics, but in Trump’s case it hasn’t been.
Trump has made extreme anchoring work for himself on a scale Cohn could only fantasize about. His $10 billion lawsuit against the IRS, filed while he was president, and concerning events that occurred during his first presidential term, is perhaps the most extreme anchor in the history of negotiating. And the likely Senate confirmation of Todd Blanche shows that it kind of worked.
I won’t rehash Step One, which is the lawsuit itself, because I’ve written about that already. I also won’t dwell on Step Two, which is the settlement Blanche approved (part one, part two) as deputy attorney general—a $1.8 billion slush fund plus indemnification from IRS investigations—because I’ve written about that, too. Instead, let’s look at Step Three, which is the negotiation over supporting Blanche’s nomination in the Senate Judiciary Committee.
The holdouts were Republican Senators John Cornyn of Texas and Thom Tillis of North Carolina. Both are lame ducks who have in their latter days in office offered some token resistance to the president. Their defiance probably isn’t based entirely on principle because they’ve both gotten screwed by Trump. Cornyn lost a primary earlier this year after Trump endorsed his opponent. Tillis decided to retire after Trump threatened to support a primary challenge against him. The salient point is that neither has any obvious reason to appease Trump.
The two senators both opposed Blanche’s nomination in committee and said they wouldn’t back down unless it could be demonstrated that a.) Trump’s slush fund, which Blanche said previously was cancelled, really was cancelled, and b.) Trump’s IRS immunity, in Cornyn’s words, “does not extend to people beyond the parties to the lawsuit.” Trump and Blanche met these two conditions, or purported to, and so Cornyn and Tillis changed their votes to aye. Blanche put in writing that “there is no fund” and he posted his Senate testimony stating that the IRS indemnity applies only to the Trump family plaintiffs (Donald, Eric, and Don, Jr.) and to the Trump Organization.
There are persuasive reasons to doubt whether Cornyn’s and Tillis’s conditions truly have been met. These are described here, for instance, and here. But don’t let’s lose sight of the lameness of Cornyn’s and Tillis’s conditions even if they are legitimately met. The outrageousness of Trump’s lawsuit should have yielded no concessions at all from the Justice Department (and the courts may yet throw them out). Why didn’t Cornyn and Tillis get that? Why didn’t they condition a nay vote for Blanche on demonstrated proof that both the slush fund and the IRS immunity deal were kaput? (I set aside here the many other arguments to oppose Blanche to keep the focus on Trump’s extreme anchoring.)
Trump filed a kleptocratic lawsuit against the federal government that itself could be grounds for impeachment. Any settlement in such circumstances is intolerable because Trump’s legal claim possessed no merit and the mechanism for settling it possessed no legitimacy. Cornyn and Tillis surely understand this. They owe Trump nothing. They are 74 and 65, respectively, so any future opportunities in Republican politics would seem, even in this gerontocratic moment, quite limited. Yet they accepted the warped reality Trump created that he ought to get something out of his $10 billion lawsuit. Why did they do that?
Maybe they just didn’t read their Voss. In Never Split the Difference Voss writes that “no deal is better than a bad deal. If you feel you can’t say ‘no’ then you’ve taken yourself hostage…. Never be needy for a deal.” Cornyn and Tillis’s willingness from the start to allow Trump some of his IRS indemnity showed they were, for no apparent reason, needy for a deal. Maybe it’s a Senate thing. It is, after all, a place that prides itself on being the world’s greatest deliberative body. Deliberation isn’t always such a great idea.
Trump was not needy for a deal. At one point he threatened to withdraw Blanche’s nomination over this dispute temporarily until January, when Cornyn and Tillis would have left. Cornyn and Tillis should have replied: “Be our guest.” Instead, they “worked collaboratively” with Blanche, according to “a source familiar with the meeting.” Why weren’t they working uncooperatively? Trump was.
This was a make-believe conflict from the beginning. Cornyn and Tillis had some power to deny Blanche Senate confirmation, but they had no power to keep Blanche from remaining as attorney general in an acting capacity. Blanche was likely going to be attorney general either way, just as President Joe Biden’s nominee for Labor secretary, Julie Su, remained acting Labor secretary after the Senate wouldn’t confirm her. In both instances, their previous Senate confirmations as deputies allowed them to be acting secretaries indefinitely. For this reason, I was surprised Cornyn and Tillis picked a fight over Blanche in the first place.
But if they were going to have this fight, they should have really had it. When a person makes an outrageous demand, the appropriate response isn’t “Let’s negotiate.” The appropriate response is “Hell no.” There’s no honor in compromising under such circumstances. The United States Senate is the last place to understand that.
