That’s the topic of my new Confirmation Tales post, in which I document how Bill Clinton, over the course of nearly three months, always seemed to be just two or three weeks away from selecting his nominee to fill Justice Byron White’s seat. Here are the several lessons that I draw from that experience:
- Each president brings his own characteristics of decision-making to the process of nominating a justice. Different characteristics have their offsetting advantages and disadvantages. Clinton was very much at one extreme in the extent of his personal involvement in assessing the candidates and their records and in his inability to reach closure on his decision.
- It’s easy for the selection process to take much longer than it should. Clinton had the luxury of a lot of time, so his slow pace didn’t hurt him much. (As I will discuss later, Obama’s effort to fill the Scalia vacancy in 2016 would have been much more likely to succeed if he had selected a nominee within a week of Scalia’s death rather than 31 days later.)
- Short-term political considerations (e.g., the White House’s fear of eroding its Senate majority) can play a seemingly disproportionate role in the process. There is a temporal mismatch between the desire of a president and White House staffers to secure a political victory and the decades-long impact that a justice might have on the Court.
- A White House doesn’t do itself or potential candidates any favors by leaking their names. Leaks give opponents an opportunity to concentrate their fire. Yes, it’s useful to know in advance who might not be happy with a nominee, but there are better ways to find that out than by triggering responses to news articles.
- No matter how intent a president is on selecting a politician with a “big heart” and a breadth of real-world experience outside what some deride as the “judicial monastery,” there will always be various judges who will be viewed as safer and higher-quality picks. The longer the process goes, the less likely it is that a president will try something daring. (The last politician to be appointed to the Court was Earl Warren seven decades ago.)
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