Academic

My friend Mitu Gulati has co-written a timely essay with his colleague Stuart Benjamin entitled "Mr. Presidential Candidate:  Whom Would You Nominate?"  (I am assuming that they didn't finalize the title until after Hillary Clinton dropped out of the race; perhaps further tinkering would make this timely essay more timeless!)  The basic premise is that presidential candidates should be pushed to name Supreme Court nominees during a campaign, much like naming a Vice President as running mate.  The paper also talks about the naming of cabinet members.  The paper gives a thorough rundown of incentives of candidates to name or abstain (and compares this to a Prisoner's Dilemma) and the pros and cons for the electorate.  The authors also argue that this is not akin to electing judges, which they concede is a very bad idea.  Eugene Volokh gives some comments on the disruptive influence on the disclosed nominees lives here.

I have a few other comments to this provocative idea.  First, unlike naming a running mate or a cabinet member, there are no automatic vacancies on the Supreme Court.  (Gulati and Benjamin do not propose a new Court be named with each new President -- whew.)  So, I wonder how the time lag would play out.  Say in 2008, Obama or McCain give two names each for Supreme Court justices.  Let's also say McCain wins.  However no one retires until 2011.  Wouldn't we think that McCain would be free to name a third, saying he had changed his mind as time went on and other nominees came to the fore?  Would we let him change his mind in 2010?  Late 2009? 

Second, nominees theoretically and in practice must be confirmed by the Senate.  Now, when presidents present nominees, senators generally don't automatically announce whether they will confirm or not until rounds of informal introductions occur and then formal questioning.  I am guessing this would change in a heated political climate.  If McCain were to announce a nominee for the Supreme Court, would the Democratic senators remain silent?  What if several influential Democrats stated that they would not confirm such a nominee?  Would senators be more outspoken and active critics of a potential nominee pending a political election?

My lingering concern is that the naming of Supreme Court nominees for better or worse will continue the trend of boiling down Presidential elections to a heuristic that is easy for the electorate to grasp.  Foreign policy is complicated; so is domestic economic policy.  So, we revert to the easy questions.  Much like Norm's repeated question on Cheers -- "Does this affect the price of beer?" -- we just want to know which candidate will make the price of a gallon of gas go down.  And, for decades, we just want to know where the candidates stand on a few, hot-button issues, the biggest one abortion.  Although I understand many people feel very strongly about abortion, it cannot be the only or the biggest problem that America faces.  But that seems to be the question we really want to know the answer to.  And when presidents nominate Supreme Court justices, that seems to be the real question we want them to answer.  Now, we know that they won't, so we ask how a candidate feels about precedent, and whether a candidate is a textualist, an originalist, etc.  We ask what they feel the role of a judge is, but what we really want to know is whether they will overturn Roe v. Wade.  Admittedly, this may be the actual question, or a representative question that we think will give us insight on other hot-button issues.  (And for the next nominee, same-sex marriage may replace abortion.)  So, with disclosure of Supreme Court nominees during a campaign, what we're really saying is that it would be a lot easier for us to decide who to vote for if candidates would just tell us if they would appoint a justice who will vote to overturn Roe v. Wade.

Very intriguing.