The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Other Side Of The Audition Trap
After a successful audition, they can stop auditioning.
I often write about the audition trap: the irrefutable claim that a person is behaving a certain way in an attempt to obtain a higher office. This charge is often made against me. I do not read the comments on this blog or social media mentions, but I am reliably informed that those who disagree with my frequently assume that the only reason I can write what I write is as part of some effort to get some other job. Many people who write me often include a similar preface: I am not like the commenters, and think you are writing in good faith. But for my critics, the truth is scarier: I actually believe what I believe. If I was actually trying to obtain higher office, I wouldn't do most of the things I do. I certainly would not have resigned from the leading conservative thinktank on a point of principle. But people will never believe me. So be it.
I alluded to this point in my critique of the New York Times's failed attempt to quantify the Trump judges:
There are more than 50 circuit appointees. Do you think all of them are auditioning? I would not deny that some might be, but the vast majority of the nominees have no credible shot at promotion. Indeed, a law professor recently wrote on a listserve that Judge Jerry Smith's dissent in the redistricting case was an attempt to curry favor with Trump. Judge Smith is nearly 80 years old. We need to exit this audition trap. You cannot simply dismiss an argument by saying the judge is auditioning. The truth may be that the judges actually believe what they are writing. For the left, that truth is too hard to process, so they rely on the "auditioning" fiction.
Yet, I acknowledge and have written that for some people, their current job is merely an audition for their next job. And what do we make of these auditioners? Well, the argument goes, they will say what they need to say to get the job, and once they are in the job, they will do what they believed all along. This temptation is especially apt in positions with secured tenure.
President Trump addressed this point in Davos at the same time that the Supreme Court was considering his termination of Federal Reserve Governor Lisa Cook. Around the 56:00 minute mark, he discusses how auditioners say one thing during the audition and do something else once the audition is successful.
I'll be announcing a new Fed chairman in the not too distant future. I think he'll do a very good job. See, I gave away some of it. He did give that away. So, we have something. You got something. But somebody that's very respected. They're all respected. They're They're all great. Everyone that I interviewed is great. Everyone could do, I think, a fantastic job. Problem is, they change once they get the job. They do. You know, they're saying everything I want to hear. And then they get the job, they're locked in for six years. They get the job and all of a sudden, let's raise rates a little bit. I call them, "Sir, We'd rather not talk about this." It's amazing how people change once they have the job, but it's too bad. Sort of disloyalty, but they got to do what they think is right. We have a terrible chairman right now. Jerome too late Powell. He's always too late. And he's very late with interest rates except before the election. He was just fine for the other side. So, we we're going to have somebody that's great and we hope he does the right job.
I can imagine that Trump has had similar buyer's remorse about his appointees to the executive and judicial branches. Indeed, a nominees will never be more conservative and aligned with the President than on the day they interview with the President. Once confirmed, the leftward retrogression is inevitable.
Still, I think Trump is wrong to describe this phenomenon as disloyalty. That presumes the candidates were ever loyal to Trump in the first place. They weren't. Auditioners are truly loyal to themselves. Many of the most prominent auditioners decided at some point it would be strategically advantageous to become conservative, and proceeded accordingly. They look in the mirror and think that they are the best, and the indeed only person who can do the job. It is no surprise then that they should follow their own judgment once in the position.
This ambition is a permanent feature of human nature. But as Madison recognized in Federalist No. 51, the only check on ambition is ambition. In this regard, the process by which presidential appointments are made, and confirmed by the Senate, may be the best way to achieve Madison's ideal. Critically, during this process, auditioners with ambition will try to knock out other auditioners with ambition. It then falls to the President to decide which is the best nominee.
