Pressing Presidential Candidates to Announce Their Cabinet and Supreme Court Choices -- A Response to Eugene:

Yesterday Eugene was kind enough both to post a link to an essay with Mitu Gulati that I just posted and to make thoughtful comments on it. I appreciate both the posting and the comments -- a big part of the fun of being an academic (or blogger) is discussing the merits and demerits of one's ideas.

Eugene's central point is his first one: the benefits to the candidate's opponents of finding dirt on an announced choice are greater pre-election than post-election, because the opponents know that they might torpedo not merely the nominee but also the presidential candidate himself. I agree that the potential benefits to a candidate's opponents of attacks on a candidate's nominees are greater pre-election than post-election. But so are the potential costs. I will use McCain as my example, since he is behind in the current polls and thus has a greater incentive to try to shake up the race. If McCain's opponents are perceived as unfairly attacking candidate McCain's nominees, the public is likely to attribute the unfairness to Obama. Obama probably won't persuade many people if he tries to say that the attacks were independent of him -- people will likely believe that his people were involved in it, just as most voters believed that George H.W. Bush was involved in the Willie Horton ad. Indeed, if Obama tries to distance himself from attacks on McCain's nominees, voters may see that as him trying to weasel out of responsibility. In other words, in the crucible of an election, when the battle between two opposing ideologies are personified in a race between two individuals, the benefits and costs of everything relating to the campaign are received/borne by those two individuals.

Now, it still may be that campaigns decide that a particular attack will win over more persuadable voters than it will deter. That's the only cost and benefit that matter to a campaign -- increasing your vote count and/or decreasing your opponent's -- and we can all imagine attacks that we think will work. But those things are very tricky to figure out in advance, and sometimes they blow up in the face of those peddling the information. It wasn't an accident that John Edwards pointedly noted that Dick Cheney's daughter is a lesbian -- I'm sure he thought it would undercut Cheney. But my sense is that it cost his ticket more votes than it gained them. Or think about rumors that have actually circulated about the two existing candidates. My sense is that "Obama is a secret Muslim" has cost McCain more votes than it has Obama (because those who believe were largely going to vote for McCain anyway, and many in the middle find it distasteful for Obama's opponents to try to stir up passions in this way). Or think back to the whispering campaign in 2000 that McCain was brainwashed when he was a prisoner of war in Vietnam. Some people spread it around in an attempt to tank McCain, but I think it likely turned off more people than it attracted.

Having said all that, I think that Eugene is correct to say that, pre-election, Presidential candidates are going to want to name people who are squeaky clean. The examples I gave in the previous paragraph are of attacks that many/most people would regard as unfair. But lots of aspects of one's personal life (e.g., whether you have sex with prostitutes, or solicit sex in men's bathrooms) are considered fair game, and presidential candidates are going to avoid people who seem to have any skeletons in their closet. This will lead to a preference for pre-election nominees who can credibly claim to be squeaky clean.

One way to achieve this is for the potential nominee or the campaign to hire an independent investigative firm to check her background. Eugene suggests that a campaign won't find everything, but I suspect that Kroll will. Indeed, I imagine that Kroll will do at least as good a job as the FBI. But if I'm wrong about that, then the FBI could perform the background checks. They do such checks routinely, and this would just be moving up the time for a few of those checks. Eugene mentions that candidates might be worried about a hostile Administration getting information from the FBI. First, the notion of a hostile Administration releasing information in advance of a nominee's announcement is in tension with the suggestion that opponents would want to wait to release harmful information until the announcement. Second, if information about an FBI background check were released to the public in advance of an announcement, the presidential candidate would (fairly) express his outrage at the Administration's violation of the FBI's processes. And I suspect that the charge would be effective -- people do not like the idea of the FBI playing politics. The hostile Administration could try to remove its fingerprints from the leak. But, as with the release of unfair attacks, people will attribute the attacks to the party that benefits, and will associate that party (naturally enough) with the party's presidential candidate.

Failing all of the above, a potential nominee could credibly claim to be squeaky clean based on a different sort of background check -- the scrutiny that comes from running for office or holding other important political positions. Someone who has recently run for office can point out that her background was extensively researched by political opponents and the press, and that they found nothing. So, insofar as private or FBI vetting is unattractive, pre-election selection will tend to favor existing politicians for vetting reasons. As we note in the essay, we think that pre-election selection will favor existing politicians for another reason -- presidential candidates will want to name people with a significant following (in the hope that are sufficiently popular to bring some persuadable voters to vote for the presidential candidate), and people with such a following will tend to be existing politicians who, not coincidentally, have already been subject to much scrutiny.

The larger point is that a presidential candidate will engage in a benefit/cost analysis: if he decides that the benefits to announcing a popular nominee are greater than the costs of vetting (the monetary costs will be relatively low, so we are mainly talking about the likelihood of the vetters missing something), then he will do it. For a candidate who is behind in the polls and is going to lose unless he shakes up the race, the benefit of attracting even a small percentage of voters in swing states will loom very large. If it looks like you are going to lose anyway in a winner-take-all game, your incentive is to start taking some risks. The worst that will happen is that you'll lose, and you're already on track to do that. And don't forget the benefit to the voters, which is our real motivation in our essay: we as voters will learn more about the presidential candidate and the policies that the candidate's team will likely pursue.

This post is already too long, so I'll make just one more point: it is true that the scrutiny of the future decisions made by those named as potential appointees will be very great. But right now we live in a world in which lots of decisionmakers -- and most troublingly judges -- may trim their sails (or, worse, change their decisions) in order to improve their chances for nomination. I would prefer a world in which I know the person whose work we need to scrutinize (the person whose is named for a position pre-election) to one in which a dozen or more politicians or judges are secretly auditioning for that same position. And if the nominee takes a leave of absence, that's fine with me. Any way I slice it, I prefer that transparency to the opacity of a bunch of judges trying to outdo each other in currying favor with a new President.

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:
Dave N (mail):
As I see it, a problem with naming future judicial choices, as opposed to cabinet positions, is that the incumbent holds the office during her or her "good behavior" and we really don't know when a judicial opening will occur.

President Bush went through his entire first term without naming a Supreme Court justice. Even though he was in obvious bad health, Chief Justice Rehnquist refused to resign at all, and actually died in office. I would add that even though I consider him eminently qualified, I had never heard of John Roberts prior to his nomination to fill Sandra Day O'Connor's seat (lest we forget, he became Chief Justice by default because he was already sailing toward confirmation, had Chief Justice Rehnquist died either three months earlier or later, we likely would have a different Chief Justice).

Ronald Reagan hinted strongly that he wanted to name a woman, though he had no idea Potter Stewart was planning to retire. I wonder if he would have named an obscure state appellate judge from Arizona had he felt compelled to name his future nominee prior to the election.

In fact, the only time I can think of when it might have mattered was in 1968, when Chief Justice Warren had already announced his retirement. President Johnson was attempting to promote Justice Fortas and Vice President Humphrey was willing to go along. But even then, it was assumed that Nixon's choice for Chief would be Justice Potter Stewart. According to The Brethren, it was Justice Stewart who asked for a meeting with President Nixon to take his name out of consideration.
7.10.2008 2:11pm
Any way I slice it, I prefer that transparency to the opacity of a bunch of judges trying to outdo each other in currying favor with a new President.

Are you referring to the disgraceful way Justices Scalia and Thomas slithered onto the Court? Maybe a historical reference point would be nice (other than the perpetually campaigning and never nominated Orrin Hatch, of course, who isn't even a judge).
7.10.2008 2:16pm
Bob from Ohio (mail):
The idea is no better today than yesterday.

And if the nominee takes a leave of absence, that's fine with me.

Carter appointed no justice. President Bush, as pointed out, appointed none in his first term. So, if a sitting judge is named, he or she should sit out an entire presidential term on the chance that the SC appointment will come?
7.10.2008 2:22pm
Dave N (mail):
"slithered onto the court." Now there is a loaded, partisan phrase if I ever read one.

I would note several things, Justice Scalia was a highly respected judge on the D.C. Circuit when he was nominated. Indeed, he was confirmed by a vote of 98-0. The partisans rained their fire on Justice Rehnquist for his supposed sins and did not oppose Scalia at all (largely, I suspect to make it look like their attacks on Rehnquist were more than partisan posturing).

Justice Thomas had served eight years as head of the EEOC and spent a year on the D.C. Circuit before being elevated to the Court. The attacks on him were some of the most disgraceful I have ever seen. So I suspect "slithered" is all in the eye of the beholder.

I would also note, PLR, in your sneer at Senator Hatch that two of the great great liberal heroes of the Warren Court, Chief Justice Earl Warren and Justice William Douglas, never spent a day on the bench prior to joining the Supreme Court.
7.10.2008 2:36pm

In other words, in the crucible of an election, when the battle between two opposing ideologies are personified in a race between two individuals, the benefits and costs of everything relating to the campaign are received/borne by those two individuals.

You really have not given us a reason to believe this. In fact, I am sure that this is false.

For example: There might be some people who take the unreasonable position that "I am going to blame every stupid attack made by Ann Coulter on Barack Obama or his nominees on John McCain. Because Ann Coulter is on John McCain's side. Therefore, if Ann Coulter makes an stupid and unfair attack, I am going to vote for Barack Obama."

But, most people in fact don't think that way. Most people would not hold John McCain responsible for something that Ann Coulter says.

There might be a few outliers out there who would blame McCain for what Coulter says. But they are definitely outliers. And that is a good thing -- its not John McCain's fault that Ann Coulter is a total wacko.
7.10.2008 2:41pm
Avatar (mail):
I had been given to understand that one of the best reasons to avoid mentioning potential/impending nominees is that the number of potential aspirants for those positions is greater than the number of actual openings, and that the prospect of obtaining an appointment is one of the things that motivates politicians to exert their influence on behalf of a candidate.

So long as there's a hope of a shot at some assistant deputy undersecretaryship, aspirants have extra incentive to give a candidate vocal and public support. If that candidate were to unveil a slate of nominations they intend to push through, obviously those who are on the list are going to be compelled to support the candidate more strongly... but those who don't find themselves on it are more likely to go "meh" and not really push for that candidate's election, knowing that they're not in the running for potential promotion.
7.10.2008 4:44pm
I think naming staff officials in advance is a bad idea for several reasons.

First, I strongly object to having FBI conduct background checks in advance. Having the government conduct checks of individuals just because they are favored by particular cantidates is an abuse of taxpayer resources.

Choosing an official in advance would exclude many qualified applicants, as it is highly disruptive. After all, would you appoint a CEO who might leave in four months to be Secretary of Transportation?

Also, most people's records give little indication how they would perform in office. Giving a list of names provides almost no information to voters beyond a general statement of what a cantidate might look for in a qualified applicant.
7.10.2008 5:52pm
Matt Wolfe (mail):
I applaud Professors Benjamin and Gulati for the insight and ingenuity of their proposal: Anything that makes the political discourse more about the substance and less about cosmetics and horse-racing is something I would encourage. Still, I wonder why this particular proposal has any more chance of getting off the ground than a proposal to make candidates commit to particular versions of orders they will execute once in office. How is the problem identified any different than candidates' reluctance to adopt very specific or rigid policy positions (for example, both candidates' energy and education plans are fairly general, neither one of them having enough specificity to be codified into law) except when forced to by being sitting legislators (as both McCain and Obama are) and having to vote on pieces of legislation? The critique seems to fit into the larger dissatisfaction with politician's lack of veracity and the public's inability to hold candidates accountable to their vague campaign promises.

The authors rightly point out that the new media has altered the norms of political debate, but if it really does allow average voters to make demands of their candidates (and I am somewhat skeptical about this—see next paragraph), why would we necessarily care to know who the Secretary of Treasury is over a candidate's specific plan to deal with the housing crunch or some other hot-button topic? If the process is flawed because it prefers personality over policies, then why would we want to encourage something that could easily degrade into the same opposition research and smear tactics that are turning voters away? (See Professor Volokh's first point.) If the result is candidates being picked off one-by-one for skeletons in their closet, then we might be pushing away good potential public servants.

I am also not sure I understand the mechanism by which this proposal gets off the ground. If the YouTube video debate is the inspiration, I fear that a candidate will dodge such a question just as easily as if it came from a moderator—if not more so. The new media has made the topics covered by candidates broader and their messages more repetitive, but I am not sure if it has made the exchange any deeper.

Specific questions:

1. Would the potential Cabinet member or judge have to assent in order to gain a benefit? If so, there might be a possible reputational damage to named candidates for cabinet-level positions, particularly for those "across the aisle" picks. As also pointed out, this would be nearly impossible for sitting judges, but it might also be difficult for currently elected officials.

2. Regarding the auditioning of lower court judges for Supreme Court slots, wouldn't it just move up the time for auditioning rather than removing it altogether?

3. As other commentators have pointed out, the shadow minister analogy does not exactly translate over the Atlantic: they also have a real function in the opposition, with the expectation that they will speak on behalf of the minority party on issues within their domain. Also, shadow ministry positions are used as political tokens for the minority party and do not always represent who will be named to the cabinet if the obtain a parliamentary majority. The parliamentary system also narrows the list of potential candidates because, as a prerequisite, they all must be Members of Parliament. Still, I think there is some ground to be made by making this comparison. (See #8 below.)

4. One of the arguments for the proposal is reversing the trend towards young and politically inexperienced judicial nominees. But, as discussed around page 7, this was not always the case: What caused this trend?

5. I grant that a significant percent of the electorate cares about judicial appointments, as evidenced by that Rasmussen poll. But this priority may be based more on ideology than demographics. I would expect that the 30 percent of Republicans who put Supreme Court nominations as their top issue care about the nominations for ideological reasons, that is, they want justices who would overturn Roe v. Wade or rollback the federal government. I would imagine they would be just as happy with a female conservative judge as a male conservative judge. Thus, a general statement, "Justices like Thomas and Scalia" would appease this identified voting bloc.

6. The discussion of losing campaign support from potential nominees if they are passed over made me wonder how deep we would expect candidates would go in naming their nominees? Are we just talking about important Cabinet positions and Supreme Court Justices, or are we also talking about White House staff, national party slots, ambassadorships, and other executive positions? If we are only talking about a half-dozen or so slots, then I would not expect the loss to be that great. That is, if John Edwards were passed up to be Attorney General, perhaps he would still be nominated to the National Labor Relations Board (assuming he would want that kind of post) and thus willing to campaign for Senator Obama. The seemingly endless opportunities for patronage, especially with the ability to always create new positions, make this objection less significant.

7. In response to the criticism that naming names will not increase the number of votes in any significant way, the naming does not need to have a direct impact on a marginal voter, making him prefer Presidential Candidate X over Candidate Y because of his preference for a potential Secretary of State. If a named Cabinet member or judge makes supporters more enthusiastic about their candidate, it could increase the campaign funds and GOTV efforts, making the undecided voter more likely to swing their way, and thus having an indirect effect on marginal votes. It is difficult to measure this enthusiasm in polls, but it can have a dramatic impact on Election Day.

8. Finally, the proposal has some other potential benefits of the implementation of the proposed norm not reflected in the paper: (1) the ability of voters to hold candidates' accountable for their surrogates' statements and (2), like in parliamentary systems, the ability of candidates to delegate certain policy discussions to their named prospective Cabinet members. Currently, if an Obama supporter attacks McCain (for example, General Clark's challenge of McCain's military service), it is relatively easy for the Obama camp to distance itself from the offending remarks. But if General Clark were to be the presumptive Secretary of Defense, his words would carry a lot more weight and the campaign would have to be accountable for his statements. Perhaps this would ultimately stifle some independent voices by co-opting them into the new cabinet, but at least voters would know who speaks for whom, and on what subjects. Those surrogates with expertise could not only advise the candidate on their particular area of expertise (let's say it's Al Gore on global warming, and he's named to be EPA Administrator), they would also be able to speak on the candidate's behalf. These effects might improve the quality of the political process.
7.15.2008 10:48pm

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