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Presidential Recusal

Before John McCain spoke at the Republican National Convention, the first part of Obama’s O’Reilly interview appeared on Fox News last night.

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O’Reilly’s question about Obama’s Iran policy provoked the most interesting moment, I thought (starting at around 2:31 in the video).  Pressed whether he would take military action against Iran if it persisted in its nuclear ambitions, Obama responded (I’m transcribing):

Look, it is not appropriate for somebody who is one of two people who could be the President of the United States to start tipping their hand in terms of what their plans might be with respect to Iran. [He goes on to say he would not take any option off the table.]

This reminded me of the line that John Roberts used repeatedly in his Senate confirmation hearings:

“I feel the need to stay away from a discussion of particular cases.”

I never really understood the explanations that were used to defend this line.  Apparently there is a judicial ethics standard that discourages commenting on a case in a way that might prejudice a judge towards a pre-determined decision.  This principle might be defensible in the realm of lower-court judges:  perhaps someone might comment casually on some decision and then, presented with new compelling arguments, refuse to reconsider their opinion out of embarrassment.

But extended to Supreme Court hearings, this virtue becomes a vice.  Senators desire nothing so much as to know in advance what a judge’s opinion will be once a future case comes along.  Without any window into how a judge would decide a case, they cannot make any meaningful decision on that candidate’s suitability.  The greater principle of making a meaningful assessment of judicial candidates is sacrificed for the lesser one of preventing minor biases.

Perhaps there is some greater argument that I misunderstand – but this is how I see it today.

Obama’s answer has at least an echo of the judicial sentiment to it.  He isn’t saying the exact same thing – instead, he doesn’t want to “tip his hand”.  I see two interpretations to that.

The first is that he can’t admit that he would not go to war with Iran, because that would undermine his ability to negotiate.  An America threatening war is more likely to reach an agreement than one which promises not to take action.  But if you are unable to identify a single situation in which you would be willing to go to war, you effectively communicate your intention not to take action.  If a party is unwilling to bear the smaller cost of threatening war, how likely are they to incur the much greater cost of actually taking action?

The other interpretation is the judicial one.  Obama is saying that spelling out his Iran strategy would prejudice his decision making ability given a future concrete case.  If he gives a response now, he will be unable to objectively analyze events if Iran actually does develop nuclear weapons, because he feels obligated to honor a campaign promise.  Like Roberts, he subverts the principles of informed democratic decision-making to the principles of objectivity.  This should be unacceptable to us as citizens.  We, too, need to be able to make decisions about concrete cases.  Unlike Roberts or Obama, we only get one shot at objectively assessing our candidates.

And as it stands, candidates probably intend for their “ethical” objections to interfere with the democratic principles.  Roberts almost certainly had developed settled opinions regarding abortion, religious freedom, gun rights, affirmative action, and any number of Constitutional controversies that were unlikely to bend to new evidence.  Confessing to these would have compromised his confirmation.  Just so, Obama knows he has no intention of going to war with Iran, but he is unwilling to admit this to voters.

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