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.

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