Why the Obama Transition Team's Intrusive Questionnaire May Exclude Some of the Best Job Candidates, or Deter Them From Applying

By MICHAEL C. DORF


Monday, Nov. 17, 2008

As was widely reported last week, President-elect Obama's transition team has been asking potential appointees to Cabinet and other high-ranking positions in the incoming administration to complete a detailed questionnaire about potential conflicts of interest and matters that could "be a possible source of embarrassment to" the applicant, his or her "family, or the President-Elect if it were made public."

Given its length and scope, merely filling out the questionnaire accurately will be a burden for applicants, even though many of the 63 questions probe legitimate areas of concern. However, some of the questions seek highly personal and irrelevant information.

After describing the areas in which the questionnaire goes beyond clearly relevant matters, in this column I shall highlight two dangers that it poses: First, moved by an excess of caution, the Obama transition team might rule out well-qualified applicants based on the fear that they will be attacked unfairly. Second, well-qualified applicants who might be embarrassed by what would ultimately be irrelevant attacks could conclude from the questionnaire itself that seeking a high-ranking office in the Obama Administration is either futile or not worth the headache.

Either of these scenarios would be unfortunate. The United States faces multiple crises that call for the most highly-qualified leadership. We can ill afford ruling people out based on peccadilloes.

The Questionnaire Makes Both Legitimate and Dubious Inquiries

Most of the questions on the Obama administration questionnaire probe legitimate concerns. Many seek financial and other information related to possible conflicts of interest. The questionnaire manifests a special concern with ties to lobbyists.

Yet some of the questions are dubious. For example, the questionnaire asks for every email, text message, instant message or other electronic communication that a job applicant has ever sent that "could suggest a conflict of interest or be a possible source of embarrassment to [the applicant, his or her] family, or the President-Elect if it were made public."

Many applicants will find it literally impossible to comply with that request. Mobile telephones do not indefinitely store text messages, although former Congressman Mark Foley learned to his everlasting shame that they can be stored elsewhere.

Moreover, some electronic communications would be protected by duties of confidentiality to clients. Suppose an applicant for a high-ranking Justice Department position, during the course of representing a client, suggested in an email to that client the possibility of a legal strategy that is contrary to some stated position of the incoming administration. Surely that email would, if made public, create either the appearance of a conflict or an embarrassing situation for the President-elect. Must the applicant either disclose the email to the transition team and violate the client's trust, or withhold it and thus provide incomplete information?

And what about matters that are simply a source of personal embarrassment? In addition to electronic communications, the questionnaire's catch-all seeks "any other information, including information about other members of your family, that could . . . be a possible source of embarrassment to" the applicant, his or her family, or the President-elect. That is in addition to a request for the identity of "anyone or any organization . . . that might take steps, overtly or covertly, fairly or unfairly, to criticize" the applicant's nomination.

The Questionnaire's Requests for Irrelevant Information

Much potentially embarrassing material is clearly irrelevant to an applicant's ability to perform a high-ranking government job. Suppose, for example, that a male applicant for an important position in the Department of Transportation has sent electronic messages ordering non-obscene but nonetheless erotic pictures of other adult men (or adult women, for that matter). That fact, if made public, could prove highly embarrassing to the applicant, because it is highly personal-and thus would have to be disclosed in response to the questionnaire.

Or suppose an applicant for an important position in the Department of Homeland Security at one time served on the governing board of a charitable organization alongside a now-respectable member of the community who was, many years ago, a member of a domestic terrorist organization. Surely, as President-elect Obama knows better than anyone, that fact is irrelevant to the applicant's current qualifications. And yet, it would no doubt count as an "association with any person, group or business venture that could be used-even unfairly-to impugn or attack [the applicant's] character and qualifications for government service."

During the course of the Presidential campaign, then-Senator Obama forcefully argued that voters should ignore stories about Sarah Palin's daughter's pregnancy and his own association with former Weather Underground co-founder William Ayers. If these matters were irrelevant to Palin's and Obama's respective fitness for the Vice Presidency and the Presidency, why is the President-elect now seeking similar information from applicants for jobs in his administration?

Could Prudence Become a Self-Fulfilling Prophesy?

In asking for sensitive and irrelevant information from job applicants, the Obama transition team does not necessarily imply that it will use this information to screen out applicants who are unwilling to divulge client confidences or who have skeletons in their closets that are embarrassing, but for which they are blameless. Politics is a dirty game, and thus it is only prudent to anticipate the attacks-fair or unfair-that could be launched against potential administration nominees. By asking applicants for all possible sources of damaging or embarrassing information, the President-elect and the applicants can better anticipate what they will be up against.

Yet that approach risks rewarding unfair attacks that might never even materialize. Given the choice between a bland appointee with few political liabilities and a bold, talented appointee with politically-salient liabilities that are ultimately unconnected to his or her ability to do the job, the incoming administration will be tempted to err on the safe side.

At the same time, some highly-talented applicants will be intimidated by the questionnaire itself. The prospect of taking a pay cut to work in government is already a disincentive to many people who currently work in the private sector. By making real the additional prospect of public humiliation, and the possibility that a prestigious but relatively low-paying government position may not even materialize at the end of the process, the Obama transition team's questionnaire could scare off some of the best candidates.

The Futility of Vetting in an Age of Swift Boating

Finally, we should have learned by now that deep vetting does not work. Of course, applicants with criminal records, publicly-stated odious views, and active conflicts of interest should be screened out. But efforts to dig further will almost surely be unavailing because political opponents of a nominee can always find or manufacture an issue with which to attack a seeker of high office.

The most prominent examples of this phenomenon can be seen in electoral politics. John Kerry's medals were no defense against the Swift Boat Veterans for Truth; Barack Obama's service on a board that included prominent Republicans did not prevent him from being attacked for "palling around with terrorists"; and the woman who made that accusation, Sarah Palin, was herself the subject of the fantastical tale that her daughter, Bristol, was really the mother of Palin's own youngest son.

Nor are unfair and baseless attacks limited to candidates for elective office. When President George H.W. Bush nominated former Texas Senator John Tower to be Secretary of Defense, some opponents objected that he was an alcoholic and philanderer, charges that should have been irrelevant given Tower's highly-successful service as an arms control negotiator for President Reagan.

Likewise, when President Clinton nominated Dr. Henry Foster for Surgeon General, opponents who objected to the fact that as an obstetrician, Foster had performed abortions, tried to link Foster-who is African-American-to the infamous Tuskegee syphilis experiment, in which African-American men suffering from syphilis were given placebos so that researchers could chart the progress of the untreated disease. Foster had served on the Tuskegee University faculty in the latter stages of the experiment but he vehemently denied any role in the unethical project.

Because the Tower and Foster nominations both failed, the Obama transition team might infer that it is essential to vet every possible detail about potential appointees. Yet that is the wrong lesson of these and other episodes. The real lesson is that political opponents will use or manufacture issues in an attempt to defeat nominees they oppose on other grounds. No amount of vetting can protect a nominee from lies.

To their credit, in the most recent election American voters appear to have largely tuned out the nonsense about Bill Ayers and the parentage of Sarah Palin's son, focusing instead on real policy differences between the candidates. That is a hopeful sign that the seriousness of our national problems makes attacks upon character a luxury we can no longer afford. With a nearly bullet-proof Democratic majority in the Senate, the Obama transition team should, in any event, operate on that assumption.


Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University. He is the author of No Litmus Test: Law Versus Politics in the Twenty-First Century and he blogs at michaeldorf.org.



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