November 10, 2010
In a recent Harvard Law School panel discussion, prominent experts tried to demystify the judicial nomination process.
Dan Meltzer ’75, Story Professor of Law at Harvard and former deputy White House counsel for President Obama, moderated an exchange between panelists who have played key roles in the process, including Danielle Gray ’03, a former associate White House counsel in the Obama Administration, Jeremy Paris ’01, chief counsel for the Senate Judiciary Committee, Curt Levey ’97, executive director for the Committee for Justice, and Seth Stern ’01, a Supreme Court reporter for Congressional Quarterly.
In addition to discussing their roles during the nominations and confirmations of Associate Supreme Court Justices Sonia Sotomayor and Elena Kagan ’86, the panelists spoke about the selection process for federal appellate and district court judges.
Gray, who joined the Obama White House in 2009, discussed the difference between how the President identifies district and appellate nominees.
“For district courts, we rely heavily on home state senators for nominations, two or three names they give the White House for recommendation,” she said. “Among those, we do a lot of research on what people have written, their local reputation, and pick one.”
Gray said the appellate process is less informal and the President uses his prerogative to select a nominee.
“Once a nominee is identified as worthy of further research, we send their name to DOJ, where more extensive vetting takes place, calling 100-200 lawyers in the nominee’s jurisdiction, and opening up FBI and ABA investigations into qualifications,” Gray added.
On the Supreme Court front, Gray said the Obama White House began to prepare for a vacancy from day one of the administration—well in advance of Justice David Souter’s announcement of his decision to retire.
The short-lists that inevitably surface and circulate in the news are usually determined more by pundits than by insiders, she added, and she stressed the importance of “rolling-out” nominees for the American people’s approval because the “attacks made in that period and the messaging are what will stick.” In that regard, she said, the Obama team made it a priority to portray Kagan as a consensus-builder.
Jeremy Paris, who was chief counsel to Judiciary Chairman and Vermont Senator Patrick Leahy, said that a key part of the nomination process for district and appellate judges is consultation with home state senators. Specifically, Paris discussed the all-important “blue slip” that Judiciary Committee members use to approve or disapprove of a nomination.
Paris said Obama’s nominations have been largely “a success story” because consensus on most of his nominees has been reached. He added, however, that he wished Republicans would more quickly clear the way for the vast majority of nominees, who are non-controversial, instead of delaying them along with the few controversial ones on whom they places holds.
New technology and record-keeping have altered the process, Paris added.
“One thing that has changed is how much information is on the Internet,” he said. “Now we hear things from the Internet, and people’s entire lives are on the Internet.”
He added that it’s difficult to be a nominee when your “entire life story is displayed to everyone.”
“Is it all just an empty ritual, sticking to their scripts?” Paris asked about Supreme Court confirmation hearings.
He said he didn’t think so because “it’s one of those times when the American people are paying attention” and the constitutionality of policies affecting the country’s future are debated.
Curt Levey, who has worked to secure the placement of Republican nominees on the bench, said that it is almost impossible to filibuster a Supreme Court nominee.
Even so, he agreed that the process has become somewhat hyper-politicized.
“The perception is that the process is becoming less deferential to the president and more ideological,” Levey said. “If you go back to Carter, yes, there was enormous deference to the POTUS.”
He continued, “You started to see it get very partisan under Clinton and ideological into Bush.”
Stern, a journalist observer of the many confirmation battles, said he believes the nomination process is “getting worse and worse.” The end-result of blocking or filibustering nominations is not filling vacancies, he said.
“You should be equally concerned if you’re a Democrat or Republican,” Stern said.
“Think about it in terms of the arms race in the Cold War – mutually assured destruction – each side will use whatever tools are at their disposal. The acrimony at the Supreme Court level has seeped down to district judgeships.”
Considering the new post-election political landscape, Stern said he wonders about the possibility that “zero nominees will be confirmed” in the next few years, given a much narrower Democratic majority in the Senate.
Spin from both sides during the Supreme Court confirmation process is dizzying, Stern added.
- Alexander Heffner