In my latest FindLaw column (updated link here), I fret about the questionnaire that the Obama transition team is using to screen potential high-ranking Executive appointees. Although I sympathize with the incoming administration's effort to avoid ambushes, I worry that the questionnaire will either result in a too-cautious approach to nominations, or chill excellent potential appointees from even applying.
As one of the many lawyers and law professors to have crossed paths with the President-elect, even to the point of misspelling his first name in the acknowledgments section of my first book (well, he wasn't quite so famous then!), and as a strong supporter of his candidacy, I might be thought to be one of the very large number of people now hoping for a government job. I'm not. I love my current job(s) too much and have only just recently learned all of my new phone numbers.
Thus, my griping about the questionnaire is not a sneaky way to get a job in the Obama administration without having to fill it out. (If it were such a sneaky effort, it would be an incredibly stupid sneaky effort: By calling attention to the fact that the questionnaire looks for too many skeletons in closets, I would be read as flagging skeletons in my own closet. For what it's worth, I don't have any. My skeletons are all out in public, mostly on this blog. But I digress.)
Here I want to suggest one further reason (beyond those in the column, which you should go read now!) why the questionnaire won't even serve its main objective: Political shaming is a moving target. Douglas Ginsburg was undone by marijuana; Zoe Baird's nomination came a cropper over a nanny problem; Bob Livingston lost his shot at being Speaker of the House over marital infidelity; and so on. The point is that one never knows what issue will, all of a sudden, become politically salient. (If you're thinking that everyone knew marital infidelity might be a problem, you're wrong. Throughout the Clinton impeachment, Republicans insisted they were going after the President because of the lying, not the extra-marital sex. And then they nix a Speaker because of an extra-marital affair. Go figure). Given the right set of facts, one could imagine an otherwise highly qualified Cabinet nominee mired in scandal because of unpaid parking tickets. (And for the record, I have none of those either!).
Posted by Mike Dorf