Mitu Gulati asked me to post his thoughtful rejoinder to my comments yesterday to his paper with Stuart Benjamin:

Many thanks to Christine Hurt for her thoughtful questions about our proposal that Presidential candidates be pushed to name some names, pre election, of their potential nominees for the Court and the cabinet. Here are some responses (as an aside, she is right that we titled the piece “Mr. Presidential Candidate” after Hillary bowed out). One question had to do with naming Court nominees. It is likely, as the question correctly points out, that there won’t be a vacancy on the Court for at least a couple of years. Given that, would we really expect (or want) a President to be bound by names he named pre election? After all, things can change a great deal in a couple of years. The point is fair. The President probably would not consider himself bound (and probably should not). Still, it seems likely, that the person named as the likely nominee would have to be given serious consideration. And there would have to be some explanation for why a different nominee was better, given the changed circumstances. Alternatively, the Presidential candidate who is worried about changing circumstances, could name a slate of potential Court nominees. The larger point here is the naming of names of potential nominees, pre election, reveals information about the President that the voters might not otherwise have – information about his preferences, his willingness to take risks, etc. So, even if no seat on the Court opens up over the next four years, it would be useful for voters, we argue, to have the name the names of the favored nominees.

The above point also gets at another question, which had to do with voters being interested in but a handful of issues, such as abortion and whether Roe v. Wade will be overturned. Given the voting public’s focus on a limited set of oversimplified issues, won’t the naming of a potential nominee to the Court simply result in voters asking whether this nominee would vote in favor of upholding Roe or not? Again, the point is a good one. But would it be a terrible thing if voters had better information as to whether a Presidential candidate would appoint Justices who would overturn or affirm Roe? If the end result is voting that is better informed, that should be a good thing. The objection to that though – and the point of the question – is that better informed voting about a single issue may result in ignoring more important issues. Presumably though, there will be a wide variety of voters who care about issues other than Roe. Inducing the Presidential candidates to compete over whose potential nominee to the Court will be better for the public may be a good thing.

Many thanks again for these provocative comments.

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