The Volokh Conspiracy -

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):

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

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.