Legal Commentary

Sandy Levinson calls the question of whether President Obama will nominate Elizabeth Warren as head of the new Consumer Protection Agency "an acid test as to whether the Obama Administration really does have backbone."  Brian Leiter agrees.  

I have no position on whether she ought to be appointed -- not because I have any reason to think she shouldn't, but because it's way outside my wheelhouse.  But I have doubts about using any individual appointment as an acid test of anything.  Some individuals have probably been the making of some great institutions, but the Consumer Protection Agency will not be a staff of one, and the test of any administration is not whether it appoints any single individual but what its patterns of appointment and administration are in the aggregate.  I yield to no one in my (uninformed) respect for Professor Warren, but surely our focus should be on the overall health of the particular agency, and also of how well the administration balances the value of any single appointment against the overall effectiveness of its political and administrative goals in the long term, not on any single figure.  The same is true, of course, of Supreme Court appointments, any one of which could be filled by multiple and equally qualified people.  It mattered far more what Obama's short-list for the Supreme Court was than who he actually picked.     

Of course, focusing on Warren as an individual figure makes more sense if our goal is not one of overall public policy but of politics and rhetoric.  Then it makes sense for any constituency -- conservatives or "progressives" -- to treat each nomination as a crisis point, and each individual as a make-or-break test of the political beliefs of the administration in question.  Sometimes that test may involve both policy and politics, as in the case of an administration nominating someone who is obviously unqualified to an important position.  But when the choice is between more than one qualified nominee, and when it is viewed across the whole of the universe of appointments made by an administration rather than by treating each nomination as the only data point, then the political and rhetorical character of this argument -- its role in determining whether an administration is "really" conservative or liberal, and which constituency will find itself either listened to or symbolically thrown under the bus -- becomes apparent.  That's fine, I suppose; there are lots of interest groups, including ideological interest groups, that have a lot of capital invested in this question.  My own view is that an administration should be judged by its overall policies and competence in administering them, and that I don't much care whether either progressives or conservatives are galvanized or disheartened by particular actions.  Nor, if it is a matter of personal loyalty, am I concerned overmuch; I think loyalty, and especially personal loyalty, is a somewhat overrated virtue in politics.  

Not everyone agrees, and they may view the stakes differently.  But we should see this nomination and all others like it as a political acid test, not a policy acid test.  The two are definitely not the same.