Navigating Negotiations: How Far Should You Go in Pursuing Your Demands?
In a departure from past presidential practices, Joe Biden approached the question of Supreme Court Justice Stephen G. Breyer's retirement with a unique level of respect and autonomy.
Breyer, who was confirmed in 1994 during Biden's tenure as chair of the Senate Judiciary Committee, announced his retirement in January 2022. Unlike some of his predecessors, Biden did not pressure Breyer to retire. Instead, he respected the justice's decision and allowed him the space to make his own choice.
This approach was a stark contrast to the tactics used by Trump's first White House counsel, Donald F. McGahn II, who courted Justice Anthony Kennedy to retire in 2018 without directly discussing the topic. Kennedy eventually retired in July 2018 and was replaced by another one of his former clerks, conservative Brett Kavanaugh.
Biden's strategy was also different from former President Barack Obama's approach to liberal justice Ruth Bader Ginsburg. While Obama never directly suggested that Ginsburg retire, he did invite her to lunch at the White House and 'danced around the subject.' Ginsburg, however, chose not to retire and sadly passed away during Trump's presidency, with her replacement being conservative Amy Coney Barrett.
Breyer's retirement raised the question of whether to engage in persuasion and communication in negotiation or to give the other party some space. Biden, being a seasoned negotiator, considered factors such as the nature of the relationship between parties, the goals of the negotiation, the level of trust, cultural context, and the potential impact of communication on achieving agreement when deciding when persuasion and communication are necessary.
In the case of Breyer, Biden's approach seemed to pay off. After Breyer announced his retirement, Biden took the unusual step of inviting him to speak publicly about his decision at the White House. Breyer wrote in his 2021 book that a judge's loyalty is to the rule of law, not the political party that helped to secure his or her appointment.
Liberal groups and advocacy organizations, including Demand Justice, had been applying pressure for Breyer to retire. However, Biden warned his staff not to put any pressure on Breyer to retire. Instead, Biden and his advisers prepared for Breyer's possible retirement by considering potential replacements.
The story of Breyer's retirement offers valuable insights into effective negotiation preparation. Showing deference and respect, understanding the counterpart's values, and letting others put on the pressure are guidelines for negotiating with respect and avoiding causing offense. Taking a mutual gains approach and carefully crafted communication in negotiation may not always be sufficient to change someone's mind, but it can help avoid causing offense and potentially harming others beyond the negotiating table.
In the end, Biden's approach to Breyer's retirement was a testament to his understanding of the art of negotiation and his commitment to respecting the autonomy and decisions of others.
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