The Buck Stops Somewhere Over There, I Guess

Judicial nominations are one area in which it doesn't much matter whether one holds a unitary executive theory of the presidency or not. In other cases, it does. For example, if an FCC chairman were to grossly abuse his office, raising or dropping investigations selectively for partisan purposes, or leaning on a media company that is in the middle of merger negotiations to encourage it to settle a lawsuit brought by a patron of that chairman, the president would obviously want to fire him; who could have confidence in such a person? The president's inability to do so would be a point in favor of the unitary executive theory, which emphasizes that, as the saying goes, the buck stops here. When it comes to judicial nominations, things are simpler. The president alone makes the nomination. He can be a lawyer or a felonious reality TV star, a genius or a semi-literate dope, but his nominations are his call.

So it seems odd to read Josh Blackman saying, in this of all areas, that if Donald Trump made bad choices of judges in his first administration--he did, although, rather conspicuously, not in the case of the one judge Blackman is discussing--then "the blame should not lie with President Trump." Of course it should. Where else could it lie?

Is it true that "[i]t's not the President's job to vet the pool of Supreme Court nominees?" Well, say rather that it's unlikely that any president will do his own Westlaw searches. But he can’t delegate making judicial nominations, and vetting the pool of potential nominees is much more his job, and much more within his capacity for decision-making, than, say, evaluating nuclear reactor safety or interest rates, or other jobs over which this president insists on control and random tinkering. And picking the people who do the vetting, or at least the people who pick those people, is certainly within his capacity and responsibility. It very much is his job.

Whether he makes a bad choice because he personally chose the wrong judge, because he picked the wrong people to do the vetting, or--and this seems to have been the case—because he made a deal about who would do the vetting, either to satisfy a constituency or to spare himself the trouble of having to care about something boring, is quite irrelevant. He, or his apologists, can't, to coin a phrase, post-emptively pin the blame on unnamed lawyers. To be sure, those lawyers were responsible to Trump. But Trump, like any president, was still responsible for the choices. If he doesn’t want to be blamed for things—and he sure doesn’t! What is his perversion of the office and the rule of law if not an extended temper tantrum over losing an election?—then he shouldn’t have run for president.

As it turns out, I think Trump made some sound choices for judges during his first administration. (At least, given his priors, or more accurately those of more interested and intelligent people working for him. I would have made other choices, unsurprisingly, but I ain’t the president.) Also some terrible choices, and some plausible choices who I think have embarrassed themselves on the bench with blowhard speeches, dubious decisions, and an addiction to dicta. I would guess that the current regime, burdened as it is by a surfeit of misplaced loyalty and ambition and a deficit of intelligence, experience, and integrity, will make a few good nominations and a lot of terrible ones. (I also imagine that first-term appointees in the "terrible choice" and "plausible but ultimately embarrassing" categories will be first in line for any Supreme Court seats. But it's just a guess.) But given that Trump, and his political dependents, are hardly shy about placing him "at the helm" when they want to flatter him (and reap political and financial benefits, and placate the mob), surely they should place him there when—after the fact—they dislike his choices. Especially, it seems, the intelligent, temperamentally judicious ones.

It’s true that, as they say, Trump consistently disrupts all political norms, none more than the sound, sober, and selfless ones. But "the buck stops here" is a pretty good norm. We should totally keep that one.