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Friday, June 21, 2013

Comey, Bipartisanship and the Obama Administration

From what little I know and recall of the guy, James Comey seems like a pretty solid selection for the FBI. But in picking yet another Republican from the W ancien regime, and particularly  in the area of national security/homeland protection, I have to wonder what's motivating the Obamians.

As one friend on FB mentioned, it seems staggering that there would be such bipartisanship efforts made after the scorched earth policies toward Dems by R's in the pre-2008 era. And as another friend mentioned, picking Comey means not advancing the careers of a Dem who could be elevated in future Dem administrations for other high and higher slots.  Obama's also been picking a number of Comey-like judges (e.g., my old colleague from OMM Sri Sri...probably a Dem but someone who was an SOC clerk and well, is he really an Obama guy?). Sure they're highly qualified, able, and demonstrate integrity. But there will be interstitial discretion on policy issues that maybe don't reflect the Dems' point of view. Still, maybe that's what Obama's game is: perhaps he really is principled in this respect and isn't seeking to lard his administration with lackeys. But I wonder if he just thinks he can't get folks with more lefty credentials through Congress, or that there aren't folks he likes/trusts with those lefty creds given his love of the lethal presidency. In any event, I would be more likely to simply applaud choices like Comey and Sri, and maybe some of the other cabinet or sub-cabinet picks (i'm still kind of pissy about Hagel), but I have great trouble recalling any Dems being promoted under the W regime to such high profile positions. Does Obama think his "gifts" to folks across the Aisle will change the Beltway culture of the Republicans, or does he just not care because he thinks these are the best guys (and, um, yes, there are lots of guys here)? Inquiring minds want to know...



Posted by Administrators on June 21, 2013 at 05:06 PM in Article Spotlight, Current Affairs, Dan Markel | Permalink


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Anybody who thinks that clerking for SOC is indicative of conservativism is dreaming. Judge Srinivasian will be reliably liberal--obviously--though he, like Judge Garland, might disappoint his patron by occasionally paying attention to the law.

And it would be hard to come up with a Republican FBI appointment more anathema to the Bush Administration than Comey, who made his entire reputation by confronting and defying the President for whom he worked. It might have been the right thing to do, of course, but it certainly didn't win him friends among Republican partisans. As for Hagel . . . please.

You can add Helene White, by the way, to the Bush Dem appointees--someone whom prior Republicans had spent a lot of capital to keep off the bench. Remind me, who are the multiple unconfirmed Bush nominees (Peter Keisler, say) whom President Obama has appointed to the courts of appeals?

I'd guess it would be hard to overstate the negative impact on Bush-Dem relations which resulted his including two failed Clinton nominees in his first dozen or so appeals court picks, only to be met with years' long delays for all of them except the Democrats, and unprecedented-in-the-history-of-the-Republic filibusters of 10 of his nominees. Both sides in the Senate bear responsibility for the descent to our current situation, but Bush wssn't one of the culprits--and the resort to filibuster was then an unprecedented escalation.

By the way, in the real world outside the academy the idea that President Obama is just too moderate and conciliatory toward Republicans would be a little . . . well, surprising.

Posted by: Anon. | Jun 24, 2013 2:09:46 PM

History Kid, thanks for the examples. I had been struggling to come up with any off the top of my head. It's fair to say, I think, that Obama has generated more high-profile appointments but you're right to point out that W did make some.

Posted by: Dan Markel | Jun 24, 2013 12:18:25 PM

Well, Transportation might not seem the biggest deal, but W. did appoint Democrat Norm Mineta, didn't he? In the judicial arena, which is arguably more important because of life tenure, W.'s earliest 2003 appointments included Roger Gregory, who was recess-appointed by Clinton to the 4th Circuit. He also elevated Barrington Parker, a Clinton District Court appointee, to the 2d Circuit. Both of those olive-branch appointments occurred in the early months when the GOP still had Senate control, too, before the Jeffords switch. Those olive branches did him no good, as others in that same appointment round got filibustered anyway.

I know; I know. There's a long counterstory going back to blue slips and Hatch and Clinton, then back to Bork, and back to Fortas and so on. I know both sides' stories about the judicial wars.

But the fact remains that those cross-partisan appointments are, to me, pretty significant ones, and shows that it's always easier to see, and remember, the "patterns" on "our side" and "their side" according to our own lights. A strong GOP partisan might say, mirroring your language, that such cross-partisan appointments were generous in light of the "scorced earth" tactics that they felt they'd received earlier.

So W. rates at least one Cabinet member and two circuit judges.

Going back further, Reagan appointed both Bill Bennett and Jeane Kirkpatrick when they were still Democrats.

Posted by: History kid | Jun 24, 2013 12:06:04 PM

Perhaps it is the case that Obama is both (i) not a natural-born citizen of the United States AND (ii) secretly a Republican...

Posted by: Republican Obama | Jun 24, 2013 8:17:28 AM

It's worth noting that the position of FBI director has traditionally been as close to non-partisan as appointments come in DC. Hoover held it for 48 years (!) across D and R Presidents; Kelley was a career FBI guy; Webster a former judge appointed by Rs but nominated by a D, etc. Plus, it's a 10-year term, so the President necessarily nominates someone who will serve one or more different presidents.

Posted by: Orin Kerr | Jun 24, 2013 12:14:37 AM

"or that there aren't folks he likes/trusts with those lefty creds given his love of the lethal presidency."

I think that nails it.

Posted by: anon | Jun 23, 2013 1:00:07 PM

From all I know, Comey is a good selection on the merits. But, to underscore your point, I'd note that in the post-Hoover era, Republican presidents have selected three full-time FBI directors and Democratic presidents will, with this nomination, also have selected three. Of the Republican presidents' nominations, all three -- Clarence Kelley, Judge Sessions, and Robert Mueller, have been Republicans. Of the Democratic presidents' nominations (including this one), two of the three (Judge Webster and now James Comey) have been Republicans. I think Judge Freeh was a nominal Democrat when President Clinton selected him (though I could be wrong), and he may still be. I'm all in favor of making the FBI director a nonpartisan job to the extent we can given our system, and I am not making a comment on the merits of any of these selections. But surely there are Democrats who are as qualified as the Republicans who have been selected. And if Republican presidents won't treat this as a job for cross-party appointments (small n noted), why should Democrats? Why shouldn't Democratic presidents focus on selecting Democrats with independence and integrity for the position and Republican presidents likewise focus on selecting Republicans with independence and integrity for the position when it is their turn?

Posted by: Sam Bagenstos | Jun 22, 2013 1:19:16 PM

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