Tuesday, July 03, 2018

Interviewing Potential Supreme Court Nominees

Mark Tushnet

Apparently, these days an important part of the process by which a President chooses among potential Supreme Court nominees is a personal interview with the President. This "development" is interesting and worth some analysis, I think. I say "development" because it's reasonably clear to me that "the interview" is a relatively recent innovation (though how recent I don't know). Here are some thoughts, in my mind at least relatively a-political, about "the interview."

First, for a long time (I think) an interview would be unnecessary because the President would already know, personally, the potential nominees. The pool consisted of politicians well-known on the national scene (Franklin Roosevelt knew Hugo Black, Dwight Eisenhower knew Earl Warren, George W.Bush knew Clarence Thomas), prominent judges who moved in presidential circles giving speeches and the like (Warren Burger), and prominent members of the bar who moved in those same circles (Owen Roberts, Lewis F. Powell). The development of "the interview" might then reflect changes on both sides of the table: on the President's side, weaker screening before the President's nomination and election, reducing the President's exposure to people in the pool; and on the potential nominees' side, an increasing institutional differentiation between the judiciary and the executive branch -- or, perhaps, the hiving off of expertise within the executive branch of knowledge about who should be in the pool.

Second, most processes involving personal interviews involve a "selector" who knows the qualities sought in a candidate and, importantly, has some reason to think that s/he has the ability to rank candidates along the relevant dimensions (sometimes with input from others in the executive suite). It's not obvious to me that Presidents have that ability, as is suggested by news reports and retrospective interviewing that stress whether the President felt a personal chemistry with the nominee. That makes sense to me. There's no reason to think that a President can do a good job of ranking candidates according to their legal ability, for example (and any decent screening process will whittle down the field to people who get over some "basic ability" hurdle -- including, I have to say, Harriet Miers and others sometimes listed as "unqualified" in news and historical accounts.) A candidate's ability to generate personal chemistry is a relevant characteristic to the extent that it bears on the way in which the person will interact with future colleagues on the Court. But the social group that is the Court is very different from any social group with which a President will be familiar, and (even discounting for the highly artificial nature of "the interview," which characterizes all interview processes) an ability to generate personal chemistry with the President has, I suspect, almost no predictive value about the candidate's potential role inside the Court.

So, third, my sense is that the interview is a combination of the theatricalization of the Presidency, demonstrating to an observing world that the President and not his staff is indeed the real decision-maker, and a sort of Weberian bureaucratization of the selection process, just another box to tick off. (There may well be some scholarly work on "the interview," though the most important work on how lists are generated and winnowed down doesn't deal with it.)

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