Is the Nomination a Done Deal?
The widely read Playbook from Politico leads with an item that readers should “look for” the President to nominate Elena Kagan on Monday, reporting that the sense of top White House aides about the pick is strong enough that they would “be shocked if it is otherwise.” The firewall between that being the sense of aides to being an actual decision by the President was jumped by an ensuing headline in a story reporting on the Playbook item at the top of Huffington Post that “Elena Kagan Said To Be Obama’s Supreme Court Pick.” (The title on the linked story says even more strongly “Will Be,” rather than “Said to Be.”)
I obviously share the view that General Kagan is the most likely nominee. But over the course of the day, this has taken on an unjustified level of confidence and certainty. If the President has in fact made his decision — and I would put the odds at better than even that he has — then he has told almost no one else. Probably Rahm Emanuel and Bob Bauer would know. The candidates themselves, the communications shop, the rest of the White House Counsel’s Office, and the Office of Legal Policy do not know. And because the information has not been disseminated, the White House has not put into effect its plan for the announcement and for communicating with external groups. Any actual information on a decision that has been made, if it has been, is extremely tightly held.
The upshot is that I think that Playbook correctly states the conventional wisdom in the White House, and I personally think it’s likely to go down in that way. (I think, though, that when it’s leaked to the AP, it will be the morning of the announcement, not the night before.) But the confidence with which this is all moving from the realm of conventional wisdom to statement of fact is unjustified. Unless someone is talking to Bauer or Emanuel, the people talking with the press about their impressions don’t actually know the decision or when it will be announced. There can be a uniquely large gap between conventional wisdom and reality here. Very, very few people are privy to the President’s thinking on this question. It’s not like legislation that gets negotiated and triangulated based on possible votes. So while it may be Elena Kagan on Monday, so too it may be Merrick Garland on Tuesday; we just have to wait and see.