February 03, 2017

Midyear 2017: Contentious judicial nominations to be examined by those on frontline of process

For as long as there has been a Supreme Court, there have been battles over Supreme Court nominations. It began with the very first president, when Congress rejected George Washington’s nomination of John Rutledge. Since then, there have been many more controversies: Clement Haynsworth, Abe Fortas, Robert Bork, Clarence Thomas and Merrick Garland, just to name a few.

But for all the public drama, the process of nomination and confirmation remains largely behind the scenes and relatively unknown to the public. Since the Bork controversy in 1987, the process has become ever more contentious.

Last March, President Barack Obama nominated Garland to fill the seat formerly occupied by Justice Antonin Scalia, who died a month earlier. Senate Republicans refused to consider Garland, saying the voters should have their say by electing the next president in November. And so the seat has remained open ever since.

Now, President Donald Trump is poised to nominate a new Supreme Court justice, plus more than 100 other new federal judges.

During the Midyear Meeting, on Feb. 3, a panel of experts, many with direct experience in the process, will discuss the intriguing, often-hidden process of how U.S. presidents nominate federal judges – and how Congress and the media react. The panel will include two federal judges who have gone through the confirmation process, two lawyers who served inside the White House (one Democrat, one Republican), a prominent legal journalist and a legal scholar.

The panel discussion is titled “The Presidential Nomination Process and the Steps to Confirmation – A View from Different Perspectives.”

“We will discuss the process of selecting a nominee leading up to the moment of decision in the Oval Office,” said Karen A. Popp, former associate White House counsel to President Bill Clinton and a partner with Sidley Austin LLP in Washington, D.C., who will moderate the panel. “A lot of people may not realize that it can take more time to get nominated than confirmed. We also will discuss the nominating process from different perspectives – the White House, Congress, the media and the nominees themselves.”

The panel will include:

  • Andre M. Davis – Senior judge on the U.S. Court of Appeals for the Fourth Circuit
  • Beryl A. Howell – Chief judge of the U.S. District Court for the District of Columbia and former general counsel to the Senate Judiciary Committee
  • Harriet Miers – Former White House counsel to President George W. Bush
  • Nina Totenberg – Legal affairs correspondent for National Public Radio
  • Russell R. Wheeler – Visiting fellow with the Brookings Institution’s Governance Studies Program and former deputy director of the Federal Judicial Center.

Like Bork and Garland, Davis knows what it’s like to be blocked from a federal judgeship. In 2000, President Clinton nominated Davis to the Fourth Circuit Court of Appeals. And like Garland in 2016, Davis was blocked by senators who said he was nominated too late in the president’s term, so they held no hearings and the nomination expired when Clinton left office. Years later, in 2009, President Barack Obama nominated Davis to the same court, and this time he was confirmed.

Howell’s path to the federal court was more conventional. President Obama nominated her in 2010 and she was confirmed five months later. She became chief judge in 2016.

“Every judge and every nomination has a different story to tell,” Popp said. “So many factors go into a president’s decision to nominate, including politics and the nominee’s personal history and qualifications. And so many factors go into the media narrative that develops around each nomination, and the Senate’s action – or inaction – on that choice.”

Since 2015, when Republicans took over the Senate, Congress has confirmed relatively few federal judges. There is now an unusually large backlog of more than 100 vacancies in federal courts across the country. In 59 of those cases, President Obama nominated a candidate but the Senate did not act. The number of vacancies has become so large that Law360 published a story after the November election with the headline “‘Judicial emergencies’ near breaking point as nominees languish in Congress.”

With a new president in the Oval Office, filling those vacancies will take on new urgency. Public scrutiny of the president’s nominees is likely to be intense.

The panel will meet Friday, Feb. 3, from 1 to 2:30 p.m. in the Hyatt Regency Miami, 400 SE Second Ave., in the Ashe Auditorium on the third floor.

“The Presidential Nomination Process and the Steps to Confirmation – A View from Different Perspectives” is sponsored by the ABA Judicial Division.