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Pressing Presidential Candidates to Announce Their Cabinet and Supreme Court Choices:

Our own Stuart Benjamin, and my former colleague Mitu Gulati, have a new draft article urging the creation of such a norm:

Imagine that it is fall 2008. John McCain has been 4-8 points behind Barack Obama in every poll for the last five months, except for a small post-convention bounce for McCain that soon dissipated. If McCain does not do something to change the dynamic of the presidential race, he will lose. One of his advisers suggests that he announce whom his top cabinet members will be, and whom he plans to nominate to the Supreme Court. If he can propose one or more nominees who will appeal to a key constituency, then maybe he can attract enough of those voters to help him in the general election.

There are risks to this move. Some voters whose favored candidates for cabinet and Court spots are not on the list will be dismayed. But McCain is behind in the polls and is looking to the strategy that might turn things around. If the odds are that he is going to lose, why not name names?

The presidential candidates claim that they will nominate better people than their competition will. But they are almost never pushed to name names prior to the election. When the matter of naming names comes up, candidates sidestep. Obama said, for example, that "I don't want to tip my hand" by naming possible nominees. Instead, he explained that he wanted Justices who would "follow ... clear legal precedent" and, where the law was unclear, would consider the interests of "those who are vulnerable in our political system" and "stop giving the executive branch carte blanche" to do whatever they want. Elsewhere, he announced that he wanted Justices who would have "empathy." In sum, he provided little more than vague generalities as to who his Justices were likely to be --- even though the implicit suggestion in his "I don't want to tip my hand" statement is that he and his advisers already have a set of names for the Court that they are thinking about. There may be personal benefits to Obama from not tipping his hand --- he can keep a variety of his supporters working hard on his campaign in the hope of being chosen as nominees. But the benefits to society of candidates being forced to show their cards prior to the election may be greater still.

It is trite to say that the current system of presidential nominations is flawed. The question is how to make it better. For those of us who have no direct power to effectuate change, the solution has to be one that can be achieved without the need for resources, votes, lobbyists, and the like. The idea will strike many as nutty. But asking candidates to name names may yield real answers, and the process of asking and answering may produce meaningful changes.

Our hope is to induce competition between the presidential candidates over who would pick the better nominees. There are barriers to inducing this competition. But they might be surmountable when one candidate is significantly behind in the polls and is willing to take some risks. The key is to consider how pre-election choices might differ from what we would expect from that same President once elected. The implications are big. For instance, we might move from the current state in which Supreme Court nominees are almost all youngish sitting federal appeals court judges who have little in the way of a controversial publications record to a model of older and more interesting non-judges.

I think this is an intriguing idea, and I agree that it would be valuable for voters to have more specific information about the candidate's plans, rather than vague generalities. Still, I doubt such a plan would work, for several related reasons that have to do with the realities of the campaign process, and the incentives that it creates.

1. To begin with, my sense is that there'll be much more incentive with the proposed system to find something damaging about a candidate's nominees. Right now, if some group torpedoes a judicial or Cabinet nominee, what do they accomplish? They blacken the Administration's eye, they might make it a little harder for the Administration to implement other parts of the agenda, and they may get a marginally better nominee from their perspective — but not much better, since the nominee will be selected by the same President.

What's more, they know that to defeat the judicial nominee or especially a Cabinet nominee, they need something very damaging to get over the presumption that the President's selections should be approved. That's why some nominations don't even yield very serious battles. What would the Republicans have really gained from blocking Ginsburg or Breyer, especially since both were generally seen (correctly so) as moderate selections?

But if future nominations are announced before the election, there's always a strong incentive to try to find problems with the prospective nominee, because it might help decide the election: It might make the candidate look like a poor judge of character, and at the very least it will distract from the candidate's affirmative message and put him on the defensive. Think the Rev. Wright fracas, only much more so, since the "he's just my minister, and there are many things on which I strongly disagree with him" defense won't really work with someone whom the candidate selects as a nominee for high office.

So I'd imagine that for nearly every nominee, except perhaps those who are clearly peace offerings to the opposition (e.g., a moderate and well-liked Republican selected by a Democratic nominee), the other side's opposition research team — both the formal team on the other campaign and also the various uncontrollable outside advocacy groups — will go into overdrive. Anything the opposition finds might offer some chance of helping defeat the candidate, and even if it's a tiny chance, it might be politically worth airing. Plus, as the authors point out, in a close election the prospect of swinging even a few close states might be a strong incentive for the campaign to do something. Likewise, there'd be plenty of incentive to find some dirt on the candidate's announced nominees even if it only swings a few votes in West Virginia, Tennessee, and Florida.

2. Now of course all this is already done with regard to the candidate, the candidate's Vice-Presidential choice, and perhaps a few other top advisors. But here this would be done with regard to several other people, including people who the authors hope will not already be insiders. The campaign might thus not know all the dirt that might be learned about them.

And while of course nominees already have to be vetted after the election, there will be two differences here. First, there might be more need to find every little speck of potential dirt, because there'll be a lot of incentive for the other side to find it. And, second, the vetting team will be much less effective: The candidate won't have the FBI to do the work for him. He'll have to use his own staff, who might be less effective. Telling lies to his staff won't be a crime, and my sense is that many people are more reluctant to say "no comment" to the FBI than they would be to campaign staffers (especially staffers from a campaign they dislike). Of course, the FBI could be told, as I understand the Secret Service is as to protective measures, that it must do the same vetting work for the campaigns as they do for the Administration; but then there will be obvious worries about a hostile Administration learning things about the campaign through its FBI agents.

3. Relatedly, say the campaign approaches someone who does know some dirt about a nominee, but who doesn't likely the campaign — say, for instance, the Obama campaign approaches a McCain partisan to ask what he knows about a former colleague whom the campaign is considering as a nominee. The partisan might have a strong incentive to sandbag the campaign — to be unreachable when they come to him, but once the announcement is made, to leak the dirt to the media in order to do the most possible damage to the candidate. (There's some incentive to do this even with the current post-election vetting system, but there'll be more incentive to do it under a pre-election announcement system, and it may be easier for the partisans to avoid talking to — or even lie to — the campaign vetters than to the FBI.)

4. And these problems will likely be further exacerbated by another phenomenon: People like talking about personalities (by which I mean especially scandalous or controversial actions by the people, as well as pure "personality" character traits) more than about policies. That's most obvious for the important but boringly technical and detailed policies, such as health care reform or social security reform. But I think that's even true more broadly — juicy gossip about people will draw more eyeballs than discussion even of sexy issues.

Maybe that's because the sexy issue discussion is probably not new to most people; how much new is there to say about abortion or affirmative action or gun control? Or maybe it's for other psychological reasons. But my sense is that it's broadly believed that personality discussions are already a huge distraction from policy discussions, in lots of contexts, including elections. The proposal, it seems to me, will exacerbate this problem.

Now the authors are right that the question is what the discussion of the nominees' personalities will displace. If serious issues related to the nominees' personalities will displace frivolous issues related to the candidates' personalities, or fluff pieces, or some horse-race issues, then that would be fine. But my sense is that on balance there's a serious risk that any new personality issues, especially about fresh-meat personalities and not the candidates and candidates' entourage (which will already have been talked to death during the primaries), will displace policy questions.

5. Finally, these reasons suggest that the intrusion on the nominees' lives and careers will be even more serious than the paper acknowledges it would be. First, the nominees would have to realize that they'll be becoming targets for some of the most expert opposition researchers (or, according to those researchers' enemies, character assassins) in the world — and more so than happens even now, for the reasons mentioned above. Second, they'll realize that anything they will do in the coming months will be especially flyspecked for errors and controversy. Even if a judge, for instance, recuses himself from "politically sensitive" cases, that might not be enough: Every line in every opinion will be looked at to see if it could be twisted to suggest some problem (e.g., the judge's being too pro-criminal-defendant or some such).

Third, they'll realize that anything they will do in the coming months will also be scrutinized for possible political sail-trimming. Say a liberal judge writes a surprisingly pro-prosecution opinion; people will speculate that maybe he changed his vote (or at least his wording) to keep from jeopardizing the campaign that has pre-nominated him. Or imagine that your private-practice lawyer has been prenominated this way; would you trust that he's looking out for your best interest, or would you worry that he's adjusting his publicly available comments and filings to make sure that they don't create possible political problems?

True, there's some risk already when a lawyer or a judge is known to be short-listed. But the pressure on a nominee to adjust his behavior (or the possibility that he will be seen as having adjusted his behavior) would surely be higher if he knows he has been preselected than if he just thinks he has a 10% chance of being selected. I suspect this is already a risk when people are nominated after the election, and are seeing their nomination languish for months. But it seems to me the risk would be even greater here.

So concerns two and three suggest that any nominee would have to basically take a leave of absence from his job for the several months between nomination and election; maybe that's not so, but I expect that this would be the best bet all around. But concern one would still remain.

Related Posts (on one page):

  1. Pressing Presidential Candidates to Announce Their Cabinet and Supreme Court Choices -- A Response to Eugene:
  2. Pressing Presidential Candidates to Announce Their Cabinet and Supreme Court Choices:
Joe Kowalski (mail):
Despite all his disavowal of actually naming names, Obama has already hinted rather strongly that he wants to keep Gates on as Secretary of Defense, which, with the exception of the far left is a choice that I don't think anyone could argue with.
7.9.2008 6:56pm
ray_g:
I honestly doubt the average voter's decision is going to be change by who the candidate says he will put on his cabinet. I'd be willing to bet that unless someone exceptionally good or bad is chosen, most voter's choice isn't influenced much or at all by who the running mate for VP is. This is the sort of micro-detail that is fun for the inside the beltway types, MSM pundits or hard core political junkies, but is unimportant to the average voter. And there is nothing wrong with that.
7.9.2008 7:04pm
CCM:
As long as the President requires senate confirmation for all major cabinet positions, announcing them anytime outside of a limited confirmation window is an invitation for mud slinging 527's, reporters, and any other idealogue with a mission.

- It would be distracting.
- Carries obvious risks.
- Its presumptuous.

And in the end, the voters don't really get to vote on the cabinet. The Senate does, and the exact makeup of that formerly august body isn't finalized until after the 5th as well.

Frankly, the only way this idea works is if the voters voted for the president and his cabinet - instead of a Senate confirmation process. Now that would be an election I would like to see.

But it will never happen. Even Vice Presidents tend to get in the way of the real choice for voters of who should be President. Polls show the VP doesn't really matter that much - I would suspect the cabinet would matter even less, though it would be great for the wonks and junkies.

Even were our presidential candidates to announce their nominees for cabinet positions early, the press would spin it as a lack of gravitas and experience - as if they can't win the election without the help of other well established names and records.

Fun to think about in any case.
7.9.2008 7:09pm
Paul Milligan (mail):
These are POLITICIANS we're talking about here. What gives you the SLIGHTEST reason to think they would keep their campaign word after election ????
7.9.2008 7:15pm
Syd (mail):
Occasionally it helps to let voters know who one or two specific people will be, like Bush hinting in 2000 he'd appoint Colin Powell Secretary of State. (Or did he actually say he would?) Doing more than that would be counterproductive.
7.9.2008 7:20pm
alkali (mail):
In addition to the points raised above, I would take issue with the following claim the authors make:

18 U.S.C. § 599 provides, in relevant part, that “[w]hoever, being a candidate, directly or indirectly promises or pledges the appointment, or the use of his influence or position or support for the appointment of any person to any public or private employment, for the purpose of procuring support in his candidacy shall be fined under this title or imprisoned not more than one year, or both.” Does this statute prevent a candidate from announcing during the campaign whom he would nominate Supreme Court positions? No. [...]

The clarity of th[e] unconstitutionality [of applying § 599 in this case] is important, because we could imagine a candidate’s staff concluding that a seeming prohibition on some planned activity would not apply, but also concluding that reasonable minds could differ as to legality, so that the candidate should not engage in that activity. Section 599 is not one of those cases, because there is no plausible argument that its application to a presidential candidate is
consistent with First Amendment jurisprudence.
I agree with the authors that the application of § 599 would be unconstitutional, but I don't think it's so beyond the pale that a candidate would be willing to hazard a violation. "Relax, Senator. Worst that can happen, you're arrested by the FBI, taken into custody, and released on bond, and then we'll move to quash the indictment before a judge whose political leanings we can't even guess at as we sit here. Nothing at all to worry about."
7.9.2008 7:28pm
frankcross (mail):
Choosing the nominees is a very time-consuming effort. If you forced them to do it during the campaign, they would have to sacrifice campaigning or, more likely, do a worse job of selecting candidates.
7.9.2008 7:50pm
Zed:
Opposition parties in parliamentary countries have had Shadow Cabinets for years. The voters know exactly who will be in the government if the given party wins.

More transparency and information is always a good thing.
7.9.2008 7:53pm
Bill Poser (mail) (www):

Opposition parties in parliamentary countries have had Shadow Cabinets for years.


But they do not say who they will nominate as judges.

As for the cabinet, the role of US cabinet members is rather different from that of cabinet members in a parliamentary system. In the former, they are (usually) the President's chief adviser in that area and often have the role of persuading the President to do something contrary to his inclination. In a parliamentary system, their role is more to carry out the already established policy of the party and its leader. Since they usually must be members of parliament, it is quite possible for the real policymaker not to be in cabinet because he or she is not an MP.
7.9.2008 9:07pm
Gulf Coast Bandit (mail):
Alkali:
18 U.S.C. § 599 provides, in relevant part, that “[w]hoever, being a candidate, directly or indirectly promises or pledges the appointment, or the use of his influence or position or support for the appointment of any person to any public or private employment, for the purpose of procuring support in his candidacy shall be fined under this title or imprisoned not more than one year, or both.” Does this statute prevent a candidate from announcing during the campaign whom he would nominate Supreme Court positions? No.
Appointment =/= nomination. Seems like that would solve the problem. But I'm not a lawyer, so I'm probably wrong.
7.9.2008 9:33pm
Pithlord (mail) (www):
Eugene misses the biggest downside from the presidential candidate's point-of-view: the proposal massively diminishes the President's power vis-a-vis his cabinet. After all, they were part of the team that got elected. That means independent legitimacy. And that in turn means it is harder for the President to fire them.

For that reason, newly-elected Prime Ministers in countries with Parliamentary systems often avoid allocating cabinet portfolios to those who shadowed them.
7.9.2008 9:40pm
byomtov (mail):
I think this would very poor strategy for a candidate. The more specific you are on anything, whether it be policy or nominees, the easier it is for the opposition to attack.

Few undecideds will decide to vote for a candidate because of who he promises to appoint Sec of State, for example, but if someone digs up something bad about the proposed nominee it will cost votes one way or another.
7.9.2008 9:42pm
Stephen F. (mail) (www):
Pithlord and I had the same idea, but approached it from different angles. I too was thinking that a pre-election "nomination" would give a nominee an independent legitimacy. I think that could work to the candidate's advantage, though, when it comes time for a confirmation battle. Hypothetically, suppose John McCain announced on the campaign trail that his first Supreme Court nominee would be Janice Rogers Brown, and then McCain subsequently won the election. When it came time for the confirmation hearings, it would be very hard for the Senate to vote against her. If it's true that a pre-election announcement would do little to sway anybody except policy wonks (who probably made up their minds already anyway), then the added legitimacy could pay big dividends during the confirmation battle, with probably little cost on the election. While pre-selecting an entire cabinet probably isn't feasible for a number of reasons, I think McCain in particular could benefit from pre-announcing a solid Supreme Court nominee. No single move would do more to solidify the conservative base than to announce a great SCOUTS nominee rather than give a vague promise for a strict constructionist justice.
7.9.2008 10:36pm
Cornellian (mail):
You can't name someone as a person you might nominate for a judgeship years down the road if and when a vacancy arises. You can't realistically name that person without his consent and no one in his right mind would consent to be placed in that kind of permanent limbo.
7.9.2008 11:28pm
jgshapiro (mail):

Hypothetically, suppose John McCain announced on the campaign trail that his first Supreme Court nominee would be Janice Rogers Brown, and then McCain subsequently won the election. When it came time for the confirmation hearings, it would be very hard for the Senate to vote against her.

First, JRB is a great example as to why this tactic would not work. Currently, McCain can say he will nominate strict constructionists and then later pick anyone from a Kennedy/O'Connor to a Thomas/JRB and be true to his promise, since the term is fairly elastic. In doing so, he solidifies his support among both those who want someone like JRB, and those who want someone right of center, but as far to the right as JRB. But name someone like JRB, and he loses the latter crowd to Obama, even if he picks up support among the former crowd. And if he names someone more moderate than JRB, he may persuade conservatives to stay home instead. So following this strategy seems more likely to lead to McCain losing than to his winning. Lack of specificity may be bad for democracy, but it is good for McCain (and Obama).

Second, even if the strategy worked to elect McCain, I doubt it would work to confirm any controversial preselected judge. The Senate is independently elected (unlike a parliamentary election) and Democratic (or moderate GOP) senators could just as easily say that they were elected based on promises to shoot down nominations of too-conservative judges, so why should they follow McCain's mandate instead of their own? This would especially be true for senators who were elected by margins greater than any margin by which McCain is likely to win. Imagine, Mark Warner wins by 20 points (he is currently leading by 30) and McCain wins by 5 (he is currently trailing by 5). Warner says he will confirm only mainstream judges if elected and McCain nominates JRB, as promised. Do you think Warner is going to be swayed by McCain's slim margin of victory when it comes time for him to vote on JRB?
7.9.2008 11:55pm
Cornellian (mail):
Hypothetically, suppose John McCain announced on the campaign trail that his first Supreme Court nominee would be Janice Rogers Brown, and then McCain subsequently won the election. When it came time for the confirmation hearings, it would be very hard for the Senate to vote against her.

What about a Senator who was elected after McCain's announcement, on a platform of opposing the nomination of JRB?
7.10.2008 1:22am
wuzzagrunt (mail):
The pressure (if any) for pre-announcing appointments, seems to come mostly from pundits and journalists. They want a steady stream of new things to opine and report about, and want them handed to them on a platter. I can't see that it could help any candidate much, and it could very possibly hurt. There is little incentive for any candidate to pre-announce controversial appointments. What we would be treated to is cookie-cutter consensus candidates for cabinet positions and judgeships, and the partisan media attempting to destroy them.
7.10.2008 8:16am
FantasiaWHT:
I don't think this would be effective at all.

The people who are politically savvy enough to know who these potential appointees are are politically savvy enough to have already made an intelligent choice about who they will vote for.
7.10.2008 9:14am
Cliff (mail):
Re: Robert Gates

Gates has already said he won't stay on in a Democratic Administration. I think he's probably telling the truth.

That said, if worst comes to worst and Jimmy Carter 2 is elected, I'd rather Gates stay on then have him pick any of the other screwballs he's likely to pick.
7.10.2008 9:28am
Rich B. (mail):
As hinted in a comment above, all this theoretical discussion is ignoring the fact that Bush said he would appoint Colin Powell to be Secretary of State, and none of the feared downsides listed above occurred.

The biggest downside for Bush, as far as I can tell, was that it was very hard for him to get rid of Powell after it was clear that they weren't a good match, since Powell had arguably as much of a "voter mandate" as Bush did.
7.10.2008 9:40am
byomtov (mail):
As hinted in a comment above, all this theoretical discussion is ignoring the fact that Bush said he would appoint Colin Powell to be Secretary of State, and none of the feared downsides listed above occurred.

Yes, but. First, there are few public figures who enjoy the near-universal respect that Powell enjoyed at the time, so that was quite unusual. Can you name someone today like that?

Second, are you sure that Bush gained a significant number of votes with this? He probably didn't lose many, but I doubt there was much effect either way.

So if that choice didn't make a difference then why do it with less popular nominees?
7.10.2008 10:14am
William Van Alstyne (mail):
Tsk, tsk!
"...whom his top cabinet members will be, and whom he plans to nominate to the Supreme Court."

No, rather, "who his top cabinet members will be, and whom he plans to nominate..."
Who...will be (not whom will be)
WVA
7.10.2008 10:35am
NickM (mail) (www):
Publicly announcing choices for one's Cabinet makes a lot more sense than publicly announcing judicial picks. There are plenty of prominent politicians of both parties who ahve already been thoroughly vetted by the voters of their states and the media such that they are known quantities to voters. There aren't any judges who fit that mold.

McCain might be well served to publicly, after the Senate has adjourned for the Term, announce his intention to renominate a couple of the Bush nominees who have been languishing and whose confirmation has broad support in the media (Peter Keisler comes to mind), but that is a special case.

Nick
7.10.2008 12:37pm
Bob from Ohio (mail):
Totally agree with byomtov about Colin Powell. Powell not only had very high approval ratings among the general public, he had respect from all sides of the Beltway class. Those kind of people are rare. Think Eisenhower before he decided which party to join. Or Grant. Or Washington. Not many others.

Powell could easily have been president but choose not to run.

There is no upside to a candidate to do so and big risks of a scandal which would be highly distracting in a campaign though only a blip afterwards. Think Bernie Kerick during a campaign.

Plus, the general public only has mild interest in the Secretary of State with a tiny bit of interest in AG and maybe Defense. How many people care about even Treasury?
Not even their families care about the rest of the cabinet posts.

Finally, it would limit the pool so his not even good from agoverning stanpoint. Gates might accept a December appointment for the "good of the country" or "you can't say no to a president" but never an October one. Politicians runing for reelection would be out of consideration also. While I know liberals don't like him, the Ashcroft appointment was a good one from the Bush point of view. It helped with conservatives. Ashcroft was running for election and was only available because he lost. I could see a senator who was re-elected with a governor from the same party resigning to be Secretary of State. No chance of that happening before the election.
7.10.2008 12:56pm
wooga:
I think FantasiaWHT is right - that pre-election names will only matter to people who are already invested in a candidate.

The rest of the discussion seems to boil down to: "specifics open you up to attack, so its better to be as vague as possible."

I think that is a big mistake - since vagueness is a sign of weakness, inexperience, and indecision - not traits you want in a leader.
7.10.2008 4:19pm
Moral Hazard (mail):
Just like Obama was ahead by 8.3% in the New Hampshire primary?

Dem Primary Results

If McCain is within 10% in the polls on election day he'll probably win due to the Bradley effect, and won't need any such desperation measures.
7.11.2008 12:15am