February 04, 2017

Insiders trade war stories of judicial nomination, confirmation process

There are more vacancies in federal courts today than at the start of any other presidency in history – 121 empty judgeships coast to coast. Filling those seats takes longer now than ever before, and yet there are no written rules for how presidents and Congress should do it.

Spencer Hsu, The Washington Post; Harriet Miers, former White House counsel to President George W. Bush; Andre M. Davis, U.S. Court of Appeals for the Fourth Circuit; Beryl A. Howell, chief judge, U.S. District Court for the District of Columbia; Russell R. Wheeler, former deputy director of the Federal Judicial Center; Karen A. Popp, former associate White House counsel to President Bill Clinton

On Feb. 3, a panel of six experts on the appointment and confirmation process traded war stories and offered insights into how the process works, how it sometimes succeeds and how it sometimes scares off qualified candidates. The Midyear Meeting panel included two federal judges, two White House attorneys, an academic who has studied the process and a journalist who has covered it.

Surprisingly, there are few constitutional or statutory requirements, said Russell R. Wheeler, visiting fellow at the Brookings Institution’s Governance Studies Program and former deputy director of the Federal Judicial Center. There are no requirements for age or even that a nominee have a law degree, Wheeler said.

Still, “no president is going to appoint a 20-year-old non-lawyer real estate agent to be a federal judge… we hope,” Wheeler said.

So how do presidents choose? And how does the Senate confirm – or not?

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Presidents “collect names from anywhere and everywhere you can get them,” said Harriet Miers, former White House counsel to President George W. Bush. They consult politicians, other judges, legal groups and their own experience, she said. And then the names are heavily vetted by the president’s staff, the FBI and others. “It’s an extensive process, as it should be.”

Perhaps a little too extensive, one judge joked. “It’s best described as an autopsy on a living human being,” said Judge Andre M. Davis of the U.S. Court of Appeals for the Fourth Circuit. Davis described his own intensive vetting and how he even attended a Baltimore Orioles game with the woman assigned to scrutinize him. “I think it helped,” he said with a smile.

Another judge – Beryl A. Howell, chief judge of the U.S. District Court for the District of Columbia – described her own vetting for the U.S. Sentencing Commission and the district court. “I found it both interesting and very rewarding,” she said.

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The harshness of some political fights over federal judgeships has left its mark. Miers said she remembers talking with one potential nominee who refused to put her teenage daughters through the ordeal. Wheeler said other potential judges refuse to put their law practices on hold indefinitely for a confirmation process that can take a year or more. “A lot of people are saying, ‘I’m just not going to go through with this,’ ” Wheeler said. 

At the White House, Miers said, candidates are grilled hard to make sure they have no hidden skeletons – a process that, Miers said, some people call “the sex, drugs and rock ‘n’ roll talk… Hopefully you avoid surprises.”

Still, some surprises are inevitable. Washington Post reporter Spencer Hsu said the media does not play a partisan role in the confirmation process, but does pursue every possible lead when vetting a candidate. “The media is an equal opportunity finder of dirt,” he said. If politicians are not candid with the media, the public will become skeptical. “You have to keep the media fed or else they get hungry,” Hsu said.

Hsu wondered if the nation’s increased political polarization is affecting the judicial philosophy, temperament and diversity of those who eventually become judges. “Does it have a toll on who goes into the judiciary? Is it changing our judiciary? I don’t know that that’s a media creation,” he said.

The panel was sponsored by the ABA’s Judicial Division and moderated by Karen A. Popp, a partner with Sidley Austin LLP and former associate White House counsel to President Bill Clinton.