Appellate judicial appointments during the Clinton presidency: an inside perspective.

• Author: Wilson, Sarah

INTRODUCTION

This essay provides an overview of the federal judicial nomination and confirmation processes from the perspective of a former Clinton administration attorney involved in the judicial selection process from 1997 to 2001. It then focuses on judicial appointments to the United States Courts of Appeals for the Fourth and the Ninth Circuits to illustrate the complex political and historical dynamics of appellate appointments during the divided-government phase of the Clinton presidency, when the legislative and executive branches were controlled by opposing parties. This essay is intended to provide practitioners and judges with a better understanding of how the judicial appointment process functions, and to add a participant observer account to more detached scholarly analyses of the process.

THE JUDICIAL APPOINTMENT PROCESS

Oliver Wendell Holmes's observation that the life of the law is rooted less in logic than in experience (1) applies equally to the judicial appointment process. The interdependent and sometimes competing roles of the legislative and executive branches are described in general terms in the constitutional text, (2) but the inner workings of the nomination and confirmation processes are the product of the gradual accretion of executive and legislative practices and prerogatives developed over time, and with some regional differences.

The Executive Branch

Presidential administrations have traditionally handled appellate and district court nominations somewhat differently. During the Clinton administration, the White House exerted greater control over the selection of appellate judges, while home-state senators who shared the president's party recommended candidates who served as presumptive nominees for district court vacancies. With the exception of President Carter, who established a merit selection commission system that was all but mandatory for appellate judgeships and recommended for district court vacancies, most modern presidents have adopted this shared system of nomination authority. (3) This essay will focus on the selection of appellate judges.

Upon the submission of a resignation or retirement letter from an active appellate judge, members of the administration's judicial selection team, headed by the White House Counsel, developed brief biographical profiles for a list of potential candidates from which a few leading contenders were selected for interviews. Candidate sources included the candidates themselves, home-state Senators, prominent lawyers, government and Democratic party officials from the relevant state, members of the judicial selection team, and federal and state judicial almanacs. There was rarely a shortage of candidates; the term "short list" was a misnomer in jurisdictions with large and talented legal communities. However, on occasion, the selection team reached out to lawyers in the relevant region to solicit additional names to deepen the pool.

Consultation with home-state senators was a critical part of the pre-nomination stage of the appointment process. Pursuant to the longstanding tradition of senatorial courtesy, home-state senators from both parties had veto power over the President's judicial nominees from their states, through the "blue-slip" policy. Following the nomination of a candidate, the Senate Judiciary Committee chair distributed a blue form to each home-state senator seeking approval of the nominee as a prerequisite to scheduling a confirmation hearing. Failure to return a blue slip, or the return of a blue slip beating an indication that a senator opposed the nomination, would doom a nominee's chances of confirmation. Consequently, pre-nomination consultation with a prospective nominee's home-state senators was an essential, if time-consuming, part of the judicial selection team's work.

During the Clinton presidency, consultation ranged from merely notifying home-state senators of a nominee's identity to the selection of a consensus candidate approved in advance by home-state senators as well as the President. In states represented by two Democratic senators, consultation generally took the form of seeking recommendations from the senators. Such consultation did not confer an entitlement to select, but rather assisted the White House in identifying qualified candidates from the state represented by the senators and secured important support for their confirmation.

The scope of consultation regarding appellate court nominees became increasingly contested in states represented by one or two Republican senators after the Republicans gained a Senate majority in 1994. In 1997, a conservative faction of the Republican caucus attempted to institute consultation criteria that would have shifted the balance of appointment power heavily toward the Senate by requiting more formal consultation with Republican senators on appellate nominees. For example, under a proposed circuit-wide blue-slip scheme, the President would have been required to consult with all of the Republican senators within the circuit, not just home-state senators, before nominating a candidate.

The Republican caucus defeated the proposals. However, in an April 1997 letter to White House Counsel Charles Ruff, Senate Judiciary Committee chair Orrin Hatch "spell[ed] out some of the circumstances which demonstrate an absence of good faith consultation," including what he characterized as "failure to give serious consideration to individuals proposed by home-state Senators as possible nominees." (4) As the Clinton presidency progressed, White House concerns about the confirmability of potential nominees and the adequacy of consultation came to permeate the selection process. Republican allegations of inadequate consultation stalled or permanently obstructed a number of appellate nominees. Toward the end of the administration, key Republican senators invoked the circuit-wide blue slip as a rationale for not processing particular candidates even though they had home-state Republican support. As the following discussion illustrates, Republican senators' insistence on levels of consultation that amounted to pre-nomination consent, and their willingness to block nominees not supported by Republican home-state senators, led to extensive negotiations over some appellate nominations.

The FBI and the ABA

Once the White House identified a potential nominee, it initiated two separate but simultaneous investigations by the Federal Bureau of Investigation and the American Bar Association. The FBI investigation included criminal and other personal background database searches, as well as interviews with local attorneys, judges, and community members. White House officials relied on the FBI reports, along with their own candidate interviews, to satisfy themselves that the prospective nominee did not have any personal background issues that would preclude a lifetime appointment, such as drug or alcohol abuse, domestic violence, non-compliance with tax laws, and serious financial problems.

By contrast, the ABA's investigation focused on judicial temperament, integrity, and professional qualifications. Administration officials initiated an ABA investigation by communicating the name of the potential nominee to the chair of the ABA's Standing Committee on Federal Judiciary. The member of the committee who represented the circuit for which the candidate was being considered conducted the investigation. Relying as a starting point on a questionnaire identifying the candidate's ten most significant litigated cases and his or her other legal work and published writings, the circuit representative completed interviews with the candidate, the attorneys and judges who participated in or presided over the litigated matters, and other members of the legal community. The results of the field investigation were then compiled in a written report that culminated in a recommended rating of well qualified, qualified, or not qualified. The rating was ratified--or sometimes changed--after committee discussion and a full committee vote, and then transmitted orally and in writing to the White House.

The Clinton administration followed the longstanding practice of submitting the names of candidates to the ABA prior to the nomination. (5) With one or two exceptions, the President declined to nominate any candidate who received a "not qualified" rating from the ABA. To avoid embarrassment to the candidate, the ABA Standing Committee chair gave the White House or Justice Department informal advance notice of a potential rating of "not qualified." In some cases, the White House or the candidate chose to withdraw his or her name from consideration in these circumstances. In other cases, the White House sought further review of the candidate's record by submitting additional references and further examples of the candidate's written work to the ABA, which sometimes resulted in elevating the rating to qualified.

Significantly, both the ABA and the administration generally considered prior litigation experience a more important prerequisite for district court positions than for appellate judgeships. Demonstrated accomplishment as an academic or a significant record of public service was considered an adequate substitute for courtroom...