Monthly Archives: May 2009

Sotomayor, Obama and Presidential Power

And the streak continues. If, as news reports indicate (and the formal announcement should come within a few minutes) Obama will nominate federal New York appeals court judge Sonia Sotomayor to replace David Souter on the Supreme Court, it will make it 17 of the last 20 nominees (by my unofficial count), dating back to Nixon’s administration, who were sitting federal appellate judges prior to being nominated to join the Supreme Court.  (This includes unsuccessful nominees).  In the end, despite expressing sympathy with Senator Leahy’s preference to choose a justice from outside the “judicial monastery”, Obama chose to play it safe. The key phrase is: “Administration officials say Sotomayor would bring more judicial experience to the Supreme Court than any justice confirmed in the past 70 years.”  Not elected experience – not experience in how the executive branch, or Congress, or the federal bureaucracy works.  She was selected – as has been the case with the last 10 justices in a row nominated for the highest court – for her judicial credentials. I will leave it to others with more expertise than I to judge the merits of Sotomayor’s selection, but I note that the decision almost certainly turned on more than her judicial expertise.  It was also almost certainly influenced by Obama’s recognition of the symbolic aspect of his choice of, and the potential political payoffs that will accrue from appointing, an Hispanic woman.

For the record, here’s a list of all Supreme Court nominees dating back to FDR’s presidency. Note the shift away from practicing politicians toward federal appellate justices during the last three decades – I’ve put the practical politicians in bold.  From this perspective, Sotomayor represents anything but change.

Positions Held by Supreme Court Nominees at the Time of Their Nominations, 1937-2009 (Adapted from data gathered by David Yalof).

Nominee

Year

Appointing President

Position Held

Hugo Black

1937

Roosevelt

U.S. senator

Stanley Reed

1938

Roosevelt

U.S. solicitor general

Felix Frankfurter

1939

Roosevelt

Law professor

William 0. Douglas

1939

Roosevelt

SEC chairman

Frank Murphy

1940

Roosevelt

U.S. attorney general

James Byrnes

1941

Roosevelt

U.S. senator

Harlan Stone (C.J.)

1941

Roosevelt

U.S. Supreme Court associate justice

Robert Jackson

1941

Roosevelt

U.S. attorney general

Wiley Rutledge

1943

Roosevelt

Federal appellate judge

Harold Burton

1945

Truman

U.S. senator

Fred Vinson (C.I.)

1946

Truman

U.S. Treasury Secretary

Tom C. Clark

1949

Truman

U.S. attorney general

Sherman Minton

1949

Truman

Federal appellate judge

Earl Warren (C.I.)

1953

Eisenhower

Governor of California

John M. HarlaN

1954

Eisenhower

Federal appellate judge

William Brennan

1956

Eisenhower

N.J. S. C. Judge

Charles Whittaker

1957

Eisenhower

Federal appellate judge

Potter Stewart

1958

Eisenhower

Federal appellate judge

Byron White

1962

Kennedy

Deputy attorney general

Arthur Goldberg

1962

Kennedy

U.S. secretary of labor

Abe Fortas

1965

Johnson

Private practice, presidential adviser

Thurgood Marshall

1967

Johnson

U.S. solicitor general

Abe Fortas (C.J., withdrew)

1968

Johnson

U.S. Supreme Court Associate Justice

Homer Thornberry (withdrew)

1968

Johnson

Federal appellate judge

Warren Burger (C.J.)

1969

Nixon

Federal appellate judge

Clement Haynsworth (rejected)

1969

Nixon

Federal appellate judge

G. Harrold Carswell (rejected)

1970

Nixon

Federal appellate judge

Harry Blackmun

1970

Nixon

Federal appellate judge

Lewis Powell

1971

Nixon

Private practice

William Rehnquist

1971

Nixon

Asst. attorney general

John Paul Stevens

1975

Ford

Federal appellate judge

Sandra Day O’Connor

1981

Reagan

Arizona appellate judge

William Rehnquist (C.J.)

1986

Reagan

U.S. Supreme Court associate justice

Antonin Scalia

1986

Reagan

Federal appellate judge

Robert Bork (rejected)

1987

Reagan

Federal appellate judge

Douglas Ginsburg (withdrew)

1987

Reagan

Federal appellate judge

Anthony Kennedy

1987

Reagan

Federal appellate judge

David Souter

1990

Bush I

Federal appellate judge

Clarence Thomas

1991

Bush I

Federal appellate judge

Ruth Bader Ginsburg

1993

Clinton

Federal appellate judge

Stephen Breyer

1994

Clinton

Federal appellate judge

John Roberts (C.J.)

2005

Bush II

Federal appellate judge

Samuel Alito

2006

Bush II

Federal appellate judge

Sonia Sotomayor

2009

Obama

Federal appellate judge

As for Sotomayor, from here the path toward almost certain confirmation goes as follows: the Senate Judiciary Committee is slated to hold hearings sometime this summer (this involves both written depositions and of course open hearings), which should lead to formal Senate approval before Congress adjourns for its summer recess in early August.  So Sotomayor will likely take her seat in time for the start of the new Court session on October 5.  (I talk briefly about the likely politics of the nomination process below).

What is of more interest to me, however, is what her selection reveals about the basis of presidential power.  Political scientists, like baseball writers evaluating hitters, have devised numerous means of measuring a president’s influence in Congress.  I will devote a separate post to discussing these, but in brief, they often center on the creation of legislative “box scores” designed to measure how many times a president’s preferred piece of legislation, or nominee to the executive branch or the courts, is approved by Congress.  That is, how many pieces of legislation that the president supports actually pass Congress? How often do members of Congress vote with the president’s preferences?  How often is a president’s policy position supported by roll call outcomes?  These measures, however, are a misleading gauge of presidential power – they are a better indicator of congressional power.  This is because how members of Congress vote on a nominee or legislative item is rarely influenced by anything a president does.  Although journalists (and political scientists) often focus on the legislative “endgame” to gauge presidential influence – will the President swing enough votes to get his preferred legislation enacted? – this mistakes an outcome with actual evidence of presidential influence.  Once we control for other factors – a member of Congress’ ideological and partisan leanings, the political leanings of her constituency, whether she’s up for reelection or not – we can usually predict how she will vote without needing to know much of anything about what the president wants.  (I am ignoring the importance of a president’s veto power for the moment.)

Despite the much publicized and celebrated instances of presidential arm-twisting during the legislative endgame, then, most legislative outcomes don’t depend on presidential lobbying.  But this is not to say that presidents lack influence.  Instead, the primary means by which presidents influence what Congress does is through their ability to determine the alternatives from which Congress must choose.  That is, presidential power is largely an exercise in agenda-setting – not arm-twisting.   And we see this in the Sotomayer nomination.  Barring a major scandal, she will almost certainly be confirmed to the Supreme Court whether Obama spends the confirmation hearings calling every Senator or instead spends the next few weeks ignoring the Senate debate in order to play Halo III on his Xbox.  That is, how senators decide to vote on Sotomayor will have almost nothing to do with Obama’s lobbying from here on in (or lack thereof).  His real influence has already occurred, in the decision to present Sotomayor as his nominee.

If we want to measure Obama’s “power”, then, we need to know what his real preference was and why he chose Sotomayor.  My guess – and it is only a guess – is that after conferring with leading Democrats and Republicans, he recognized the overriding practical political advantages accruing from choosing an Hispanic woman, with left-leaning credentials.  We cannot know if this would have been his ideal choice based on judicial philosophy alone, but presidents are never free to act on their ideal preferences.  Politics is the art of the possible. Whether Sotomayer is his first choice or not, however, her nomination is a reminder that the power of the presidency often resides in the president’s ability to dictate the alternatives from which Congress (or in this case the Senate) must choose.  Although Republicans will undoubtedly attack Sotomayor for her judicial “activism” (citing in particular her decisions regarding promotion and affirmative action), her comments regarding the importance of gender and ethnicity in influencing her decisions, and her views regarding whether appellate courts “make” policy, they run the risk of alienating Hispanic voters – an increasingly influential voting bloc (to the extent that one can view Hispanics as a voting bloc!)  I find it very hard to believe she will not be easily confirmed. In structuring the alternative before the Senate in this manner, then, Obama reveals an important aspect of presidential power that cannot be measured through legislative boxscores.

Of perhaps greater significance – not one of you predicted Sotomayor’s nomination, and thus no one is the recipient of an “It’s the Fundamentals, Stupid!” T-Shirt.  I am deeply, deeply disappointed in all of you.  If it were in my power, those diplomas that were handed out in the pouring rain would be rescinded.  What kind of an education did you pay for?  I’m shocked…SHOCKED!

ADDENDUM: Conor Shaw did, in fact, predict the Sotomayer nomination, and for precisely the right reasons, in my view (although he did try to slip in a second choice as well!)  My apologies to Conor for overlooking his victory.  He has singlehandedly restored my faith in the efficacy of a Middlebury College education!  Conor – send me your t-shirt size…

On Commencement Day, In Honor of My Favorite Student

In honor of today’s commencement ceremonies now occurring in the pouring rain, I thought that rather than slog down the mountain to endure those miserable conditions with my students, I’d rather stay dry at home, recline in the easy chair before the crackling fire, sip a scotch, and write a blog commemorating My Favorite Student (M.F.S) from the class of 2009.

In particular, I want to thank M.F.S. for:

  1. Showing up to that first 8 am class in Twilight Hall four years ago, all bright-eyed and bushy-tailed, and remaining awake for at least the first ten minutes of my opening lecture on why you should study American politics;
  2. Having the chutzpah (translation: short-sightedness), after listening to my lecture on the evils of a legal career (the cocaine addiction, the estranged children, the massive debt, the adultery with the pool boy, the long hours writing briefs defending the parent company of the Exxon Valdez ["It was just a little spill! In Alaska, for god's sake!"] and, of course, the terminal cancer) to ask me for a letter of recommendation to law school;
  3. Taking the initiative to ask your parents, after hearing my lecture on the American Revolution, during which I quote from memory and with perfect inflection Captain Kirk’s famous speech about the Constitution- “You remember the words, but you’ve forgotten the meaning!” – from the Star Trek episode “The Omega Glory” (season 2): “Who’s Captain Kirk?”;
  4. Defending your right to wear an Evil Empire (i.e., New York Yankees’) cap to my class – and never, ever, ever making that mistake again;
  5. Understanding why, despite your parents’ skepticism, political science is considered the “queen” of the social sciences, and why four years studying it has better prepared you to improve the world than if you had chosen any other major (but especially economics) – unless you blow it and go to law school;
  6. Giving me a gift of a bottle of scotch after the final class lecture that wasn’t Old Smugglers and didn’t come in a plastic bottle;
  7. Understanding the difference between a prediction based on well-tested political science model (Obama will win the presidential election) from an educated guess based on atheoretical  political science correlation (Clinton will win the Democratic nomination);
  8. Learning, from my grading policy, that 80% of success in life comes from just showing up;
  9. Realizing that my political views and partisan affiliation are exactly the same as yours;
  10. Repeatedly entering my blog contests for a chance to win an “It’s the Fundamentals, Stupid!” t-shirt.
  11. Not commenting on the state of my office;
  12. Realizing that when I called on you in class, it was to make a broader teaching point, and not (necessarily) to put you on the spot, (although your discomfiture was an added benefit);
  13. Acknowledging that in the celebrated Dry-Dickinson exchange regarding Sarah Palin, I had the stronger argument;
  14. Understanding that when we next see each other, I will have completely forgotten your name, but will remember everything you ever said to, or wrote for me, during your entire four years at Middlebury.  (Which means at our next meeting you must greet me by first telling me who you are.)
  15. For enduring my failed efforts, in the biannual election night presentations at the Grille with my colleague Bert Johnson,  to avoid allowing the event to turn into a giant pep rally for a party or candidate, and instead make it an educational event that explains why the election turned out as it did (and for bringing me free beer all night long);

And, finally, for teaching me more than you realize during your four years here.  Students often don’t appreciate that our interactions with them provide the impetus and the spark for keeping up with developments in our field of interest, as well as learning about related events (like how to acquire The Cable).  The questions you ask me often became the source of lectures (or blogs!)  In short, education at Middlebury is an interactive process – a two-way street – from which I benefit as much, or more, than do you. That is why I stay in this job despite the fact that, as you all know, I work for free.

So, assuming you don’t get pneumonia today (did I mention the fire is warm?), let me end by sending you – My Favorite Student – best wishes in all your future endeavors.  Do stay in touch, and remember to thank your parents for getting you vaccinated, for rousing you out of bed for all those 5 am trips to the skating rink; for the endless piano lessons; for reminding you to finish those application essays; for instilling a strong sense of values based on discipline, hard work, and rooting for Boston sports teams; and for forking over the $76,000 a year (none of which went to me) to attend Middlebury College.  They did all this because they love you and they want to be sure you don’t have to move back home again.

And parents, you should realize that although you won’t ever see that money again, and that your kids are in fact going to move back home for a bit, it was money well spent.  Contrary to what you probably believe deep in your soul, you have not squandered your retirement, and your child did not waste four years by majoring in political science.  Read the papers.  Listen to the news.  More than any other discipline, it is politics that most determines whether tomorrow will be an improvement over today.  Your child has a head start in fulfilling that promise.

So, to paraphrase the late, great Richard Neustadt, “Trust the kids.”  After all, you were one too and look how your life turned out!  (Ok, never mind ….)

P.S. To My Favorite Student: If you would like to continue to get direct email notifications of new presidential power blog postings, please remember to provide me with an updated email before your Middlebury email expires. And the same goes for you parents out there who also wish to get blog notifications.  Unlike the Middlebury alumni office, I’ll never ask for money.

And Now For Some Controversy: Bush, Obama and the War on Terror

Earlier this year, I wrote (see here) an op-ed piece for our campus newspaper laying out my expectations for the Obama presidency.  Probably my most controversial prediction, and one that elicited more than a little negative reaction from some of my colleagues, was the following: “Obama’s foreign policy in its broad outlines is not likely to differ much from the Bush administration’s: no retreat from the global war on terror, a lengthy (albeit slightly diminished) presence in Iraq and a beefed up security commitment in Afghanistan.”  I concluded by writing, “Obama faces hard choices at home regarding closing Guantanamo Bay, restoring confidence in the nation’s intelligence services, and generally balancing the need to protect the nation’s borders without sacrificing basic civil liberties. He will find – as Bush did – that in the struggle to balance the two, the weight of constitutional responsibilities will push him toward securing national security first.”

Needless to say, many readers disagreed. If there was one aspect of Obama’s presidency that surely would differ from Bush’s, it would be his handling of foreign relations, particularly as they impacted civil liberties at home.  For many Obama supporters, the promise to reverse the Bush era policies on interrogation, military commissions, rendition and prisoner detention formed the foundation of his promise to be a “change” president.

It is still far too early in the Obama presidency to come to any final conclusions, of course, but not too early to assess my claim that, contrary to what many expected, Obama’s foreign policy will not significantly differ from Bush’s.

Let’s look at the Obama record to date on key foreign policy decision related to the war on terror and civil liberties, and compare it to Bush’s:

1. Closing Guantanamo Bay prison: During the campaign, Obama criticized the use of Guantanamo (Gitmo) to hold enemy combatants for extended periods of time, arguing that it became an unwelcome symbol of the Bush administration’s willingness to violate accepted international norms for treating prisoners.  In his second day as president Obama issued an order to close Gitmo within a year. As I have long taught my students, however, a president’s executive orders carry very little weight unless they are in accord with the preferences of (or not actively opposed by) Congress. Although Obama’s executive order met with initial bipartisan congressional support, there was some concern that Obama had not yet adequately addressed what to do with the detainees there.  That concern became a full-fledged political problem for Obama within the last week when an overwhelming bipartisan majority of Congress signaled their opposition to closing the prison until Obama comes up with a plan for dealing with the roughly 240 individual still held there. Two days ago, by a vote of 90-6, the Senate denied Obama’s request for $80 million to close the prison. That vote came on the heels of similar vote in the House last week. The problem, from Congress’ perspective (among both Democrats and Republicans) is the political cost of relocating these detainees to mainland prisons – no one wants to accept suspected Al Qaeda and Taliban terrorists in their backyard. The issue is further complicated by the leak of an unreleased Pentagon report that estimates that about 1 in 7, or roughly 70 of the 534 detainees already released from U.S. detention facilities including Gitmo are now engaged in terrorism or related acts. Understandably, politicians are leery of being accused of releasing someone who may perpetrate the next 9-11 attack.

Bush, you will recall, also advocated closing of Gitmo, but not until the cases of those held there were disposed through trials by military commissions and/or an alternative location for holding detainees could be found.  We see, then, that Obama is discovering what Bush realized: that Gitmo appears to be a horrible choice for holding enemy combatants – except when compared to the alternatives. It is one thing to say you will close Gitmo – quite another to do it. Because Obama made closing Gitmo a symbol of change, I do not doubt that in the end he will follow through on this promise.  But it will require the expenditure of tremendous political capital, and will likely not occur on his preferred timetable.

2. Ending the use of certain “enhanced interrogation procedures”, such as waterboarding, that many believe constitute torture. Obama also issued an executive order on his second day in office requiring that the Army field manual be used as the guide for terrorism interrogations, thus apparently ending the Bush-era practice of waterboarding prisoners.  As you’ll recall that technique was used, sometimes repeatedly, on at least three of the several hundred enemy noncombatants captured during the war on terror.  Despite his belief that waterboarding is torture, Obama has  repeatedly said that he will not pursue charges against anyone who used this or similar interrogation techniques, and he has opposed calls from members of his own party and from the netroots to investigate the use of these practices.  One reason for his reluctance to do so may be his realization that leading Democrats – as indicated by the recent controversy regarding Nancy Pelosi – may have tacitly endorsed the use of such techniques.

3. Rendition:  At the same time that he outlawed waterboarding, Obama also appeared to establish a potential loophole by allowing the continuation of rendition, a policy that allows the CIA to capture suspected terrorists and hold them for short periods in jails in other countries.  Although Obama’s executive order states that: “(a) CIA Detention.  The CIA shall close as expeditiously as possible any detention facilities that it currently operates and shall not operate any such detention facility in the future.”, it also declares that “(g)  The terms ‘detention facilities’ and ‘detention facility’ in section 4(a) of this order do not refer to facilities used only to hold people on a short-term, transitory basis.” Critics argue that this simply allows the CIA to oversee the use of enhanced interrogation techniques by third parties on captured enemy combatants before transferring them to U.S. facilities – exactly the policy the Bush administration was accused of employing.

4. Military Commissions: In a decision that deeply disappointed civil libertarians, Obama decided last week to revive the use of military commissions first established by the Bush administration, and later ratified in revised form by Congress, to try some of the detainees currently held at Gitmo.  Obama has promised to build in more safeguards, including restrictions on the use of information obtained through torture, to protect the rights of those enemy combatants who will be tried using military commissions.  But he has accepted the Bush argument that, as enemy combatants, these detainees cannot be tried under regular civil or military courts. This despite saying during the campaign that “It’s time to better protect the American people and our values by bringing swift and sure justice to terrorists through our courts and our Uniform Code of Military Justice.” Upon reviewing the policy, however, Obama has apparently agreed with Bush that some detainees simply cannot be tried through these other avenues.

5. Iraq withdrawal. I’ve blogged previously on this issue, so won’t go into detail except to say that increasingly it appears that U.S. combat troops won’t be leaving Iraq by the date or in the numbers that Obama hoped for during the campaign trail.  It now appears that the U.S. will miss the June deadline for a complete withdrawal of combat forces from Iraqi cities, and there remains significant debate whether Obama will even be able to hold to the Bush-negotiated deadline of removing all combat troops by the end of 2011.  It may be that in order to appear to meet the deadline, the Obama administration will have to fudge the definition of “combat soldiers” in a way that makes it appear that all such soldiers have been withdrawn. His own military commanders continue to make the case for slowing the withdrawal in order to make sure that gains from the surge do not dissipate when U.S. troops withdraw.

We see, then, that Obama moved quickly upon taking office to remove the most controversial symbols of the Bush-era war on terror.  Moreover, in his rhetoric, especially when speaking abroad, Obama has been quick to note the changes in U.S. policy and to condemn Bush-era practices that violated international accords. But when looking at the substance of actually policy change, there has been much less than meets the eye. In fact, what is striking – given how Obama supporters viewed his candidacy – is how much continuity between the Bush and Obama presidencies there has been when it comes to conducting the war on terror.  Who would have predicted this?  (Hint: see above!)

How can this be?  What explains Obama’s reluctance to reverse the major polices underlying Bush’s War on Terror?  It is easy to condemn Obama for failing to fulfill what many, particularly Democrats on the Left, thought he would do as president. The reason he has not done so, however, is not that he was not sincere when making his campaign promises to change the Bush policies governing the war on terror. Instead the explanation is rooted in a point I return to again and again, but one that bears repeating: campaigning is not the same as governing.  When he became president, he assumed a responsibility, and a perspective on politics, that is simply unimaginable on the campaign trail.  More than any single individual in our nation, it is the President who bears the burden of protecting the security of our country.  That vantage point is unique among elected officials; it is not shared by anyone else, and it permeates everything presidents do.  This is not to say that presidents are more powerful in foreign policy – in a later post I’ll make the claim that their foreign policy powers are actually quite weak.  But they do bear a sense of responsibility that Congress, as a collective body, simply doesn’t feel as acutely.

Harry Truman was once interviewed about his decision to go ahead with the development of the H-bomb.  How could he justify the decision?  He replied that he felt it was his responsibility, as president, not to tie the hands of his presidential successors – he owed it to them to make sure they had every tool available to protect the country. His first thought, then, was of the individuals with whom he shared the office of the presidency. Invariably, when presidents are faced with a major foreign policy crisis, the first person they consult, if possible, is a former president.  And why not? No one else really understands what they are going through.

Let me be clear here. I do not mean to denigrate the importance of the symbolic acts Obama has taken so far; the banning of waterboarding, at least directly by the U.S., and the promise to close Gitmo, are significant steps in signaling his intention to reverse, at least in name, the most controversial of the Bush-era policies.  But it is also the case that substantively his policies to date have proved far less of a reversal of Bush’s policies than Obama’s supporters hoped.  Note that Obama does not lack the authority to fulfill those expectations – he could have ended the use of rendition, not revived military commissions, and directed his military commanders to meet his 6-month timetable for withdrawing all combat forces from Iraq.  Despite the media focus on Cheney’s claim that Obama has weakened U.S. security, the plain fact is that most leading Republicans support most of Obama’s policies discussed above precisely because they have not substantially reversed Bush’s.  Put another way, if John McCain had been elected president, it is probable that we would be seeing almost the same policy steps undertaken that Obama has pursued to date.

It is easy to criticize Obama – and anyone who follows the netroots realizes he has angered the Left with his failure to reverse Bush’s policies.  But that criticism, I think, is misdirected. The reason why Obama has largely continued Bush’s foreign policy is because he perceives the same threats, and operates under the same constraints, as Bush did.  Safeguarding the nation is not, in the end, a partisan issue.  It transcends pure politics, even though presidents cannot ignore politics in pursuing this overriding goal. It is why Obama attacks the symbols of Bush’s policies without significantly changing their substance.

The surprise is not that President Obama continues Bush’s foreign policies in the main – it is that anyone ever thought it would be otherwise.

 

 

Who Should Obama Nominate to Replace Souter? – It’s Not Who You Think

Who should Obama nominate to replace David Souter on the Supreme Court? In an earlier post, I hinted that political scientists have actually studied this question quite extensively, and their conclusions are not necessarily what one might expect.  Many political scientists believe there are compelling reasons why Obama ought to avoid nominating someone who is currently a sitting jurist, such as an appellate judge at the federal level, and instead should pick a politician – preferably someone who has a background in elected politics – as the next Supreme Court nominee.  It is a position that I share.

Why do I advocate nominating an elected politician rather than a “professional” jurist?  For reasons that my former Harvard colleague Gordon Silverstein cogently spells out in this recent TNR piece.  As Gordon argues, “While the instinct in choosing a justice for the highest court in the land is to find the most qualified judge or legal scholar, there is a powerful case to be made that the court very much needs an experienced elected official among its ranks. Someone with the appropriate legal experience who also has faced voters and listened to constituents, someone who has rounded up votes to pass legislation and has actually implemented policy, would bring to the bench an intimate knowledge and understanding of the American political system, its institutions, and how they actually work, on the ground, in the 21st century.”

A more politically-savvy court, Gordon argues, would provide at least three benefits. First, it would reduce the number of split-decisions the Court renders because politicians are adept at using compromise and bargaining to achieve consensus. That, in turn, would provide more legal “heft” to Court decisions.  Second, the Court’s decisions would be less likely to be cast in legal jargon centered on abstract theorizing and legal hair-splitting, and more likely to be expressed using easily accessible reasoning that the public understands. Third, justices would be more likely to understand the practical impact of their decisions, particularly as they pertain to implementation.

Gordon acknowledges that a Court dominated by politicians might exhibit weaknesses as well.  In areas involving fundamental constitutional issues, one could argue that the Court ought not to be rendering decisions arrived at through bargaining and compromise.  But this presumes that elected politicians are less capable than professional jurists in recognizing when such rights are at stake.  I’m not convinced this is the case.

Note that the highest Court wasn’t always dominated by legal professionals.  As David Yalof points out, of the 22 Supreme Court appointments made between 1937 and 1967, 12 of them went to individuals in the executive or legislative branches, as opposed to the judiciary. At least three other appointees were political insiders.  Beginning with Nixon, however, presidents have increasingly ignored practicing politicians when making nominations and instead tapped those from the professional judiciary who possess extensive legal training. By my count, of the 19 nominees to the Supreme Court dating back to 1969, almost every one has been a sitting appellate federal judge.

The trend toward nominating professional jurists accelerated in the 1980’s with the increased polarization of Congress, against the backdrop of divided government, and the growing role of interest groups on both sides of the ideological divide in the nominating process. The new, more contentious process was evident beginning with Reagan’s unsuccessful effort to place Robert Bork on the Court.  Yalof argues that the growth of the role of lawyers in the White House and the Justice Department has contributed to this trend as well, as they have provided much of the information on which presidents base their nomination choices. Lawyers, by instinct and training, prefer members of the legal profession.

The result is that Presidents are now encouraged to pick individuals with a strong legal background and relatively non-controversial opinions, rather than a politician who would make an easy target on partisan grounds alone but who, if Gordon is right, might bring real benefits to the Court.

The irony, as Yalof suggests, is that this shift in the type of nominee has made the Court less – not more – willing to defer to elected officials.  As a result, the Court is more likely to be embroiled in legal controversy, which in turn insures that nomination politics are still more controversial, and that the Court’s decisions will continue to be divisive.

Obama has a chance to reverse this trend by nominating an elected official or someone with a practical understanding of politics.  But will he do so?  Publicly, he has expressed agreement with those, such as our own Senator Patrick Leahy, who are pushing for a nominee from outside the “judicial monastery.”  The problem, however, is that Obama’s personal preference to pick someone who “understands that justice isn’t about some abstract legal theory,” is likely to collide with others’ desire to fill the position with someone meeting their own criteria.  Most importantly, as a Democrat facing a Democratically-controlled Senate, he will be under strong pressure to pick a left-leaning judge.  He also will face pressure from those pursuing their own brand of “identity” politics, in the form of a woman and/or Hispanic nominee.   This will make it difficult for Obama to pursue his own preferences, whatever they may be.  And, to date, Obama has shown little interest in spending political capital to change the way Washington works.

If news reports are credible, the short list of candidates is composed primarily, but not exclusively, of individuals who I would characterize as legal professionals.  A partial but by no means exhaustive list initially included Sonia Sotomayor, an Hispanic who currently sits on the U.S. Court of Appeals for the 2nd Circuit; Elena Kagan, the current Solicitor General and formerly dean of the Harvard Law School and Diane Wood, a judge on the 7th Circuit Court of Appeals.  In recent days, however, a couple of politicians, including Homeland Security chief Janet Napolitano and Michigan Gov. Jennifer Granholm, have made the media “possibility” list (as has California Supreme Court Justice Carlos Moreno.)    Of course, it is in the administration’s interest to selectively leak names to curry favor with interest groups, and to keep the media guessing.  Among this group, Kagan has perhaps the most inside connections, and the least visible judicial record.  In short, she fits the mold of recent appointees – smart, and lacking a controversial record of judicial opinions.  She would be the conservative choice and Obama, to date, has shown a propensity for taking the safe route.  However, it may not be the politically feasible choice, given pressure from liberals and Hispanics.

So, who will it be?  Will Obama actually push for real change when it comes to the Supreme Court, and opt for a politician? It is time to give away another “It’s the Fundamentals, Stupid” t-shirt. Send me your nominee, either in the comments section or directly by email.  In the case of ties, the earlier respondent wins.  As always, no wagering allowed, and employees of this blog cannot participate in the contest.

One Man’s Press Conference Question is Another Man’s… .

Olivier’s very useful follow-up post (see his comment here) on the issue of journalists’ questions at presidential press conferences, coupled with the earlier comment from my colleague Murray Dry, are reminders (as if you needed it!) that there is plenty of room for disagreement (and learning) on this blog, particularly when discussing topics that, for whatever reasons, have not been the subject of much prior political science research.  For those coming late to the conversation, both Murray and Olivier questioned my criticism of Jeff Zeleny’s four-part question to Obama at the most recent presidential press conference. I thought the question elicited nothing particularly useful about either the administration’s recent policies or about Obama’s presidency – or Obama – more generally.  More importantly, I didn’t think the question had much probability of doing so.  Murray disagreed, saying he found Zeleny’s question the most interesting one asked at the conference. Building on this, Olivier reminds that we often judge the efficacy of a particular question by the response it elicits.  Journalists going into a press conference, however, don’t have the luxury of hindsight; under a great deal of uncertainty, they must use their best judgment regarding how best to use their precious opportunity to ask one of the perhaps dozen questions a president may answer in a typical one hour news conference.  No one can be entirely sure what question will prove newsworthy and which – as his anecdote about April Ryan’s question to Bush regarding the role of faith in his decision illustrates – will be treated with the scorn I heaped on Zeleny’s question.

Olivier and Murray raised valid criticisms.  Deciding what to ask a president at a conference is more art than science, and ought to be assessed accordingly, particularly since one can’t be sure how a president will respond and because people react differently to whatever response occurs.  I will say that as Zeleny was asking his question – but before Obama gave his answer – I turned to my wife and muttered something about what a complete waste of a question this was. So my initial judgment did not depend on Obama’s answer.  In retrospect, I still think there were many more questions that Zeleny might have asked that had a higher probability of eliciting a more newsworthy – however one judges newsworthy – response.  But I passed judgment from the comfort of my easy chair, glass of scotch in hand – it was Zeleny who actually had to come up with a question, working with a great deal of uncertainty and under the media spotlight. As Olivier suggests, it’s easy for me to play post-press conference quarterback.  And as Murray’s comment suggests, many people thought Zeleny asked the most interesting question.  For what it’s worth, the post-conference reaction among the punditocracy revealed a similar mix of sentiments, with Zeleny both praised and ridiculed.

There are two broader lessons here.  As I noted in my initial post, press conferences serve different purposes for presidents, journalists and the public.  Not surprisingly given these different objectives, reactions to both questions and answers are likely to vary across and even among audiences/participants.  One man’s incisive query is another’s wasted opportunity.  Second, on many issues discussed here, there isn’t much in the way of “science” on which to base assessments – evaluating press conferences is more akin to judging movies. (The most recent Star Trek reboot is excellent, by the way.)  Although my primary purpose with this blog is to use political science research to discuss current events as they relate to the presidency, I’m not unwilling to cross the line and present my own personal pundicating on topics of interest about which there may be little prior research.  I’m confident that you can separate reasoned opinion from more rigorous analysis and – when you disagree – are willing to offer up a countervailing opinion.  That’s what this blog is all about and what – I hope – separates it from many of the other blogs you might read.  We are trying to educate and learn, not create still another echo chamber where likeminded people can reinforce one another’s prior convictions.

(And I don’t really believe Zeleny should be banned from all future press conferences. Although a period of probation may be in order.)

Ok. End of sermon.

In a comment on my last post, Gary Roosa points out a recent Newsweek article examining Obama’s use of staff – a topic about which I’m writing my latest book.   I’ll have more to say about this topic in later posts, but I think the article is useful in pointing out the basic tradeoff all presidents make when recruiting and organizing staffs: finding the balance between conserving the president’s time versus maximizing his exposure to information and competing viewpoints.  Every president struggles to design a staff organization that does both – unfortunately, efforts to optimize one invariably diminish the other.  I’ll have much more to write about this.

And if you get a chance, take a peek at the NY Times article re: unease among House Democrats about the process by which the House is putting together a health insurance bill.  As the following passage suggests, it is a nice illustration of the difference in lawmaking processes in the House and the Senate: “The Blue Dogs said the policy-making process in the House compared unfavorably with the approach in the Senate, where two committees have held open forums and the chairman of the Finance Committee, a Democrat, is working with the panel’s senior Republican.

In the letter, Blue Dogs representing districts in states as varied as Maine, California, Pennsylvania and Alabama lamented that “our contributions, to date, have been limited.” They praised “the collaborative approach being taken by our Senate colleagues.”

Just another reminder that the House is run by the majority party leadership, while no one really runs the Senate.