Would it be legal and ethical for the president of the U.S. to privately discuss a cabinet position with the intended person before officially nominating?

They do this. They also use mediaries to do this—a person who the president knows personally who knows the candidate personally—to “feel them out” before they get the call. What is unethical about it?

I assumed this was the way it worked. It seems stupid to not do it.

It is pretty much the way it works. Although I can’t remember the exact circumstances, I seem to remember hearing of someone who was considered, but declined even before they were nominated.

Of course. The cabinet is at the discretion of the president, and he’s allowed to talk to what people he chooses about most anything he chooses.

Why would there be anything illegal about it?

The president can appoint, re-assign, or dismiss his cabinet at will, too.

The “ethics” might dictate against it merely from a practical point of view, if it’s liable to cause some sort of speculation or political consideration or resentment from certain personality types (e.g. see the first episode of House of Cards).

Obama did this with Oprah Winfrey for a cabinet position. In 2012. She refused. She wanted to work on her new television station.

I would hope the president would thoroughly discuss a cabinet position with one or more candidates (and probably advisors too) before making an appointment. There should be no surprise to either one when the nomination takes place. I wouldn’t even appoint a committee member in public without knowing whether they’d accept and whether their goals and methods would align with mine as the head of the team.

What could possibly be the intent of any law that forbade this very practical approach? And how would it ever be enforced?

Most sane people don’t propose marriage on the kiss-cam at a NBA game.

What you’re describing is always done. A nomination isn’t a surprise party; it needs to be known that the person would be fully committed to going forward, and the individual’s life is put under a microscope for any potential scandals.

Nobody ever gets a job without an interview. That’s true of any position in any industry.

What if he nominated a person and the person didn’t want the job? Wouldn’t that make him look stupid? Of course he has this conversation with the person prior to anything going public.

I work with many local politicians and I can assure you that only about 10% of what goes on makes it to the media. So much occurs behind the scenes that the public never hears about.

Aside from the fact that “it has always been done”, context is key, as it is with nearly everything. Maybe with the exception of thermonuclear war and some other activities of that ilk.

For example, it would be a complete breach of ethics to discuss this as a quid pro quo arrangement: “If you contribute so much $$$ to my campaign, then I will give you the appointment as thus-and-such.” The give and take happens, of course, but there are no promises beforehand. The trading is not quite so cut-and-dried.

Aside from the discussion / interview, there is that little matter of ‘advice and consent’ of the Senate. I thought people would be hip to that by now.

The “advice and consent” part has pretty much evolved into “confirmation hearings”. There might be some informal consulting with individual Senators or Congresspersons before any nomination takes place, but the only formal action by the Senate would be the confirmation hearings (which they are now refusing to hold), and the actual confirmation vote.

Thanks all.

President Obama’s first choice to succeed Justice Scalia, declined the nomination. Since the Supreme Court is a separate branch of government, I would think that any prior consultation between Obama and a potential nominee should be avoided to eliminate any suggestion of collusion.

Cabinet positions are different. The Cabinet is viewed as an extension of the presidency. When a new president comes into office, it is assumed that the old Cabinet will be replaced with a new one.

^^I don’t see any problem with the president, or someone running for president talking to a possible supreme court nominee before announcing who the nominee is. You need to know if the person is interested in the position.

@LostInParadise: What collusion? What if he nominates someone who didn’t want the job? What if the person had health problems that were not previously disclosed and doesn’t feel up to a new job? What if the person is looking to retire in a few years and not wanting a job that will last maybe a lifetime? What your are saying makes no sense.

If the Supreme Court nominee does not want to serve then he/she can just say so after being nominated. I don’t see any reason for previous contact. If there is previous contact and the person later accepts then it may look as if some kind of deal was made. Why allow for that interpretation?

How would the President look if that happened?

As I said, farther up, I can assure you that way more happens in politics than meets the eye.

I would consider it utterly irresponsible of a president or any other official to make a surprise nomination without having had a deep and serious talk with the prospective appointee. Collusion? Whatever happened to collaboration? cooperation? consultation? Even if we had an idiot, a charlatan, or a megalomaniac for a president, I think he or she would know enough to confer with a potential nominee beforehand.

@LostInParadise Who declined the nomination? No one that was formally asked. A few people took themselves off the short list, but he has only nominated one person, Merrick Garland.

There is nothing wrong or unethical about consulting with someone before nomination.

I misspoke about declining a nomination, but Nevada governor Brian Sandoval asked to be removed from the list of potential nominees before Garland was chosen. With that option available, there is no need for prior consultation.

Google it, @LostInParadise. One of the first things that happens, after being investigated, is the President interviews the person, prior to nominating them.

http://www.wisegeek.com/how-do-i-become-a-supreme-court-justice.htm#didyouknowout

What if the person wanted to retire? What if the person were sick but it wasn’t well known? What if the person had some dirt in their background that they knew would be revealed with the vetting process?

Thanks for the link. I stand corrected, although having a list of potential nominees allows them to remove remove themselves from the list, which as I pointed out above, did happen in the case of one of Obama’s potential nominees.

@LostInParadise, would you interview a babysitter before leaving your child with him or her?

Babysitters do not have voting records or records of judicial decisions. Still, I concede the point, raising the white flag.

According the @jca‘s article, the Judiciary Committee holds a public review of the court nominees. I can remember the ruckus during the Clarence Thomas hearing, though I don’t know if that was the Judiciary Committee or the full Senate. That hearing brought out another aspect of the review process, which is the ability to call in people to offer testimony. In Thomas’ case, Anita Hill’s testimony caught the public’s attention.