The only thing interesting, when a smart and presumably rational actor brings about a predictable response from others, is why he chose to do so. And this is most definitely so when the independent actor primes the waters for a particular response, as President Obama did in announcing that he was seeking a nominee with “empathy.” It is certainly possible that the President prizes empathy as principally as he suggests and believes Judge Sotomayor, separate from all of the politics of her nomination, the best person for the job. But, particularly because the nomination of Supreme Court justices is what game theorists would call a multi-actor repeated game, it is also quite possible that neither is the case.

First, by emphasizing empathy and by so conscientiously touting the judge’s biography, the President has assured the terms of the debate and radicalized his critics. This has already resulted in Rush Limbaugh further alienating Americans who support affirmative action, even when practiced voluntarily by private actors. The President has thus created a “heads I win, tails you lose,” scenario. Sotomayor will either be confirmed over the protests of those who diminish the relevance of her personal history, but who are heard by the masses as diminishing the history itself. Or she will be defeated or withdrawn, with Republicans having alienated the country’s fastest growing ethnic group and leaving the President the opportunity to choose perhaps a less biographically-impressive but more intellectually-formidable nominee.

This points to why the Sotomayor nomination makes sense in the context of a repeated game. Chances are the President will face two or three vacancies during his first term. And let’s say that he really wanted to nominate to the Court his close friend and now head of the Office of Information Affairs, Cass Sunstein, a legal scholar whose intellectual credentials are unmatched by any others reportedly on the “short list.” (Brian Leiter reports that Sunstein was the most cited law professor between 2000 and 2007 in the field of Constitutional and Public Law, with more than 75% more citations than the next most cited person, Laurence Tribe.) What would be the best strategy to get Sunstein on the court?

Would it be best to nominate him first, when interest groups, ginned up to oppose the first person down the pike, would comb Sunstein’s scholarly works for evidence of immoderation and turn the already hot Washington summer into a referendum on jurisprudence? Or would it be better for Obama to make a “biography pick” first, expose himself to the charge that he’s only interested in identity politics on the Court, and answer those critics when the second vacancy appears by nominating an ivory tower Jewish male? Resistance will nonetheless be fierce, but opponents will be in a weaker position for having shifted strategies, whereas the President will be in a stronger position by appearing to have addressed the previous concerns.

Considering this context, the optimal strategy for conservatives most concerned about the eventual appointment of a Sunstein-like figure to the Court (and his likely far greater influence on the law than Judge Sotomayor) would be to avoid any debate about the relevance of her biography and keep their focus on competence, judicial experience (of which Sunstein has none) and jurisprudence. Doing so may be impossible in the current environment, for playing identity-politics, both on the Right and the Left, is a heck of a lot easier than debating judicial philosophy. And, as Rush knows, it sells.