Presidential Power

I don’t normally stray far from my area of expertise in these posts, but a couple of you have asked whether political science can shed any light on the events occurring in Iran, specifically the allegations of vote fraud.  Although I have little expertise in Iranian politics, I have been following the work of some of my colleagues in this area, and thought I’d provide a brief summary of their findings.  By way of background, as most of you know Iran held its presidential election on June 12. The incumbent, Mahmoud Ahmadinejad, was declared the victor in what purportedly amounted to almost a landslide, but the main opposition candidate, Mir-Hossein Mousavi (as well as other opposition candidates) is arguing that the results were tainted by fraud. (According to official government results, Ahmadinejad won more than 62 percent of the vote, compared with 34 percent for Mousavi, his closest challenger in a four-person race. That is almost identical to the percentage Ahmadinejad won four years ago in a two-person race, but that result came in a runoff election. Seven major candidates participated in the first round of voting in 2005 — when no incumbent was running — and Ahmadinejad got 19 percent.) During the week since the election was held, there have been widespread demonstrations among both candidates’ supporters and the situation remains volatile. Yesterday, in an effort to put a lid on the continuing protests (see story here), Iran’s religious leader, Ayatollah Ali Khamenei threatened to crack down on opposition leaders should the demonstrations continue.

So, was the election fraudulent?  Those who believe it was point to a number of indicators, including the apparent speed with which the paper ballots were tabulated, and violations in protocol for recording votes at polling stations (see here).  Beyond these impressionistic indicators, however, is there any other evidence of fraud?  Political scientists typically use a couple of statistical methods to detect vote fraud more generally. One (somewhat controversial) method is to look at the polling results and see if the distribution of the digits in the electoral totals conforms to statistical expectations.  Interestingly, in many data sets - like street addresses - digits are not randomly distributed; there are far more addresses beginning with one than nine, for instance (this is called Benford’s Law, after physicist Frank Benford, although he wasn’t the first to come up with the idea).  Some argue - but there’s no consensus on this that I know of - that in election results that are the result of natural processes, certain numbers should occur more frequently in the listed vote totals.  (The controversy partly has to do with how the methods by which votes are registered [say, by machine versus paper ballot] influence the distribution of digits in the vote total).  So if reported results don’t conform to this expectation, it suggests someone manipulated the results. Unfortunately, since the Iranian results have been aggregated at the level of townships (that is, results from polling booths have been combined in each township) the standard tests designed to see whether voting results conform to the statistical expectations of Benford’s Law probably can’t be used because of the “mixing” of polling booth data that washes out these patterns.

A second method is to compare results across successive elections, to see how well votes in the first election predict the results in the second, taking into account the dynamics of both elections.  For example, if one wishes to explain Bush’s vote totals in the 2004 U.S. presidential election, a good predictor is to take the 2000 results and simply add about 3% across the board among all voting demographics supporting Bush, and you’d come up with a pretty accurate approximation of Bush’s 2004 votes.  This is because there wasn’t much deviation in the underlying voting coalitions across the two elections; Bush drew on the same voting groups in 2004 as he did in 2000, but he increased his support among those groups.  In fact, the correlation between Bush’s vote in 2000 and 20004 is about .97.  That is, the best predictor of how Bush did in 2004 is to look at who voted for him in 2000.

University of Michigan political scientist Walter Mebane has applied this method to study the Iranian results (see the Mebane paper here).  For the less statistically-inclined, a straightforward discussion of Mebane’s analysis is contained HERE, at the Pollster.com website.  But essentially what Mebane does is compare the town-level results in the 2005 Iranian presidential election with the town-level results in 2009.   (The analysis is slightly complicated because in 2005 there was a run-off election between Ahmadinejad and his main opponent following the first round of elections, whereas in 2009 there was no runoff election, since Ahmadinejad purportedly won a majority of the votes in the first round of elections.)   So Mebane is really comparing the second-round results in 2005 with the first round in 2009.  Mebane expects, given the high turnout in 2009 (supposedly close to 85% of voters) and the apparent surge of support for the opposition candidate in 2009, that in towns that did not support Ahmadinejad in 2005, his proportion of the vote total would go DOWN in 2009.  Conversely, one would expect Ahmadinejad to perform best in 2009 in those same towns that voted for him in 2005.  In fact, however, Mebane finds that this is not always the case; there are numerous outliers that do not conform to expectations.  Mebane concludes:  ”More than half of the 320 towns included in this part of the analysis exhibit vote totals for Ahmadinejad that are not well described by the natural political processes the model …represents. These departures from the model much more often represent additions than declines in the votes reported for Ahmadinejad. Correspondingly the poorly modeled observations much more often represent declines than additions in the votes reported for Mousavi.”  Mebane’s bottom line: while the data are not conclusive, he suggests there is “moderately strong support for a diagnosis that the 2009 election was afflicted by significant fraud.”

Before accepting Mebane’s analysis, let me add two caveats: first, as he readily acknowledges, Mebane is no expert on Iranian politics.  He doesn’t read Farsi (Persian), has no understanding of the local political dynamics in the towns whose data he analyzes, and he is relying on data provided to him by someone else with no way of verifying its accuracy.  Second, his “naturalistic” model assumes that the surge in voter turnout reflects an increase in support for Mousavi. But it’s quite possible that the dynamics of this election reflect a surge, particularly in more rural areas, for Ahmadinejad as well. More generally, without independent confirmation, there is a lot of uncertainty built into the assumptions underlying Mebane’s model, as he freely admits.  We cannot dismiss the possibility that Ahmadinejad did, in fact, win a commanding victory.

Of course, many observers in the U.S. are hoping that Mousavi - as the more “moderate” candidate - won, and therefore are inclined to support the idea that the election was tainted, despite the uncertainty.  We shouldn’t let our ideological predispositions influence our assessments of the facts, however. (As a quick test of our willingness to do so, consider the following: how many of you believe that by intervening in the 2000 presidential election and stopping the statewide recount, the Supreme Court prevented Al Gore from winning Florida?  Quite a few of you, I’d wager, although we now know this is not the case. )

There is a larger point, here, however: viewed by “western” standards, the electoral system in Iran is fraudulent, regardless of the outcome.  There is no truly independent media, and the results, in the end, must satisfy the ruling theocracy to stand. In this respect, I would argue, there is little debate: the Iranian election WAS tainted, regardless of whether Ahmadinejad or Mousavi truly received the most votes.

NOTE: I am on deadline to finish my book on White House staffing and therefore (as I hoped you’ve noticed!) will be blogging much less frequently throughout the summer.  However, if you have questions or topics worthy of a blog posting, do send them along and I’ll try to respond in a somewhat timely manner.

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).

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…

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.

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 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.