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Bench Memos

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Why Delay a Nomination?



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Does anyone have any coherent explanation for the White House’s apparent strategy of delaying a nomination? I’m stymied by that decision, which I believe is quite detrimental to the President and his nominee. Despite checking with a number of well-plugged-in people, I can’t find anyone who can articulate a compelling rationale.

The advantages of a speedy nomination are obvious: it allows the President to make his own news and seize the initiative; it prevents the storm of leaks, trial balloons, demands, lines-in-the-sand, and interest group pressure from achieving critical mass; and it enables earlier hearings. The protracted pre-nomination periods during the two Clinton picks are generally thought to have made the President look indecisive, political, and awful.

The White House staff has been fully ready to advise the President on an appointment to replace Justice O’Connor since the spring of 2001, so it can’t be that the White House was unprepared for this. (That would be unconscionable if true.). While some period of time is needed to ensure careful deliberation, thorough consideration of the various factors affecting the choice, and interviews of a couple finalists by the President, 2-3 days should be more than sufficient. I would have expected a nomination on Monday, July 4th, or the morning of Tuesday, July 5th.

Instead, the White House has formally promised that there will be no nomination prior to July 8th, and they appear to be conditioning the press to expect an announcement even later than that — either the week of July 11th or possibly even after Labor Day.

I can only imagine that some of the old hands are drawing the wrong lessons (or over-learning the right ones) from the Bork nomination, in which the August recess was used to good advantage by opponents of the nomination. But Bork was not defeated for that reason; there were many others that played a much greater role. And the interest groups and surrogates on the right are ready this time in a way that they were not in 1987. Finally, and perhaps most importantly, the President’s Party controls the Senate by a comfortable margin. In all phases of this battle, speed would seem to favor the Administration and the nominee. Delay favors their opponents.

So why are they pursuing this strategy? What am I missing?



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