At the Federalist Society’s Texas Chapters’ Conference on September 19, the final panel offered a ten-year retrospective of the Bush Administration’s judicial appointments. On the panel were Rachel Brand (who served as Associate Counsel and Assistant AG in the Office of Legal Policy), Reginald J. Brown (special Assistant to the President), Leonard Leo (Executive Vice President for the Federalist Society), and Harriet Miers (White House Counsel, and herself a Supreme Court nominee). The panel was moderated by Judge Priscilla R. Owen, whose nomination to the 5th Circuit Court of Appeals was blocked by Senate Democrats from 2001 through 2005.
This panel was important, both in terms of what it discussed from the past administration, but also what it portends for the next administration. Like with my post about Justice Alito’s remarks, I was doing my best to type in real time, and transcribe the event. Here is a summary of the discussion, which was not recorded.
First, Judge Owen asked about what are the qualities that make a good judge.
Miers answered first, and explained that she looked for “character, intelligence, and hard work. Humility was important to President Bush. He wanted individuals to serve as judges for all of the right reasons, not because it was a stepping stone, or that they could be called ‘The Honorable.’ He was intent on picking people who would do what they think is right, without regard to impact on whether they would be subject to editorial the next day. If I heard him say that once, I heard him say it all the time. He needed judges who wouldn’t react to being unpopular, who wouldn’t be afraid to dissent.” Referencing Bush’s surprise remarks earlier that morning, Miers cited “courage. To be the kind of person that President Bush was interested in considering, someone had to have courage. It does take a very special sort of courage to do what you think the Constitution requires, whether it is popular or not. Everyone likes to see nice things said about them in the newspaper. It is difficult to have not-so-pleasant comments. [JB: Miers may be speaking from personal experience here]. Persons chosen for life tenure must have the courage to do the right thing, consistent with the Constitution. President Bush wasn’t interested in someone who wanted to be legislating from the bench. It is almost trite to say that now. It had to be applied, in choosing people to be judges in President Bush’s administration.
Brand explained that she was in the Counsel’s office from the very beginning of the transition leading up to January 2001. [JB: We should not forget that due to the contested election, the race was not completed until December 2000]. Brand said “was clear to lawyers that President Book took judges very seriously. That was affirming and empowering to us. The White House was willing to spend political capital on judges, and it was a priority. It was ambitious to get a slate of judges four months after nomination.” Brand was very proud of that initial slate of nominees announced on May 9, 2001, which included Owen, Michael McConnell, Jeff Sutton, John Roberts, and Miguel Estrada.
Brown added that 10 out of the 11 judges on that first slate reflected President Bush’s “ideology of what makes a good judge.” The 11th Judge, which Brown wished he “could get back,” was Roger Gregory to the 4th Circuit. Gregory was a peace-offering to Senate Democrats
Leo said, the of the “first slate of judges, what I think impressed conservative leaders was the seriousness with which president took judicial nominations and role of the courts. That energized the conservative movement. It started with the campaign, President Bush said things other candidates weren’t saying. He reinforced it by setting up very rigorous process for vetting prospects for judiciary, and getting them confirmed. He showed a willingness to fight, speaking out when necessary. This led to good relationship between the President, President’s advisers, and the conservative movement. For the first time, there was well-organized outside coalition that was going to be investing time and talent to defend nominees of President Bush to the federal bench. None of that would have happened if president didn’t’ demonstrate seriousness that we haven’t seen in other political leaders.
Second, Judge Owen asked about the interaction between the President and the Senate.
Brand said that it was “important to understand the role that the Senate has before the point of nomination. The Senate Judiciary Committee issues blue slips. The President makes a nomination to court, and the senators from that state get a blue piece of paper, and the SJC chairman will never move forward unless both senators have returned positive slips. The White House knows that, and takes Senators views in account when making nomination. The Senator’s is considered strong for the district court. President Bush told Senators, give me at least three names, then began the process of negotiation. One Senator held a press conference with a prospective nominee, saying ‘I have nominated this person to the court of appeals.’ The Senator had not even given name to the White House. That person was not nominated. We thought President should have more discretion for courts of appeals.”
Miers added, “that sometimes Senators were very opinionated, and that made our lives difficult. And that’s not just the Democrats. Some of the Senators had strong views in our own party.”
Brown then offered some thoughts of how the Bush administration staffed the White House Counsel Office. He said, “based on their work in the Bush and Reagan administration, it was easy to staff the WH Counsel office. If you don’t staff the White House Counsel with conservative attorneys, you don’t get conservative judges. Legislative Affairs, Political Affairs, The Counsel’s Office, and the Justice Department held weekly meetings to get names vetted. There was a drive that really resulted in a lot of judges going through. There were large chunks of times where we didn’t have the Senate. [JB: Remember Jumpin’ Jim Jeffords?] The left had an agenda. They were going to drive down filibuster from the Supreme Court to the Court of Appeals. The left did everything they could to thwart us. If we had not been persistent, I don’t think we would have had the numbers.
Leo added, “Most presidents did not have rigorous ordered process. Not till Reagan did we see systematic approach to nomination of judges. Even during the Clinton administration, the process was not as regimented as the two Bush administrations. Even now in the Obama administration, the process has so many inputs from so many directions, that process is much more chaotic. We should not take for granted success we saw in the Bush administration. It is a process we saw that was deliberate. The process was mapped out early on during the transition period. There was a thrust and parry between how much political capital would be spent on capital hill. The conservative movement got engaged at times when the Senate needed to tend to more of its business. The intensity of the administration’s judicial selection process was perhaps manifested in fact that there were senate races where judicial nominations became an issue. This became quite a hot issue in Sen. Daschle’s race. Some credit his defeat in part of this issue.
Miers quipped, “there may be individuals who would like to be judges. I would like you to reconsider this choice in favor of becoming Senators. We need both. We need to be starting now in terms of the grass roots, both support for individual who are good possible candidates, as well as support and community rallying that it will take some day.”
Brand commented that at times it was difficult to find qualified nominees for the district court. “Sometimes we had to beat the bush. We called lawyers there, judges, anyone we knew.”
Miers agreed that “it was very concerning when we couldn’t find someone who met the qualifications we needed. We called lawyers in the community, community leaders, groups like the Federalist Society. This should never happen.”
Brown explained that Alberto Gonzales (whom he referred to as “Judge”) “was the architect of the original structure that served the President very well. We looked to Federalist Society people first. But now just calling up Leonard [Leo], but looking at people in the state chapter who could tell us about people who had been appointed to state courts, or Assistant U.S. Attorneys that had the kind of preliminary credentials that would make for appointees that would be good down the line. We also reached out to faith-based groups. To the President’s credit, though political contacts had to be managed, they didn’t drive it. We picked judges who would be great judges, not judges who had just written a check.”
Leo noted that today “people don’t remember the post-nomination views of the American Bar Association. The ABA no longer had a preferred role in evaluating nominees to the bench. That is important in the pre-nomination phase. If you don’t have this imprimatur pre-nomination, you have more flexibility to seek opinions from wide varieties of sources.”
Brand added that she “was there in the counsel office when that decision was made” to stop submitting names to the ABA before a nomination was made. Brand stressed that the ABA could still evaluate a nominee afterwards, but that they played no role in the initial selection. “That was the biggest mountain made out of the smallest mole hall. There is no reason to put one private group in preferential status in selection of judicial nominees. The change was simply to not allow the ABA to rate nominees before nomination. In the Clinton administration, the White House would give the name before the nomination, and rate them. President clinton still nominated people who were rated ‘not qualified.’ All that President Bush said was you do not get preferred status. They only got post-nomination reviews. And that was only because Senator Specter wanted them to, as he said the Senate Judiciary Committee would not hold hearing until they received an ABA rating.”
In one of the few points of disagreement on the panel, Miers had different thoughts about the ABA. She thought the pre-nomination ratings were valuable as a mechanism to weed out the bad candidates, and as a method to disqualify political favorites who were not fit for the job. She explained, “The ABA to me, through the course of my legal career, several times has been beneficial, in acting to keep unqualified nominees off the bench. I am saying all this, knowing that it is not your favorite position. We’ve had people we knew would be bad choices to serve as federal choices, and the ABA process was able to make sure those individuals were never nominated. Once they are nominated, it far more difficult to stop. If we could figure out some way to have lawyers and judges say to the White House or Senator, that this person is not qualified to serve, and these are the reasons, and this is their behavior, that would be very helpful. If it is not the ABA, I wish there was some process that could take its place.” Miers added at the very end, “I wasn’t talking about our nominees.” I digress to draw attention to the elephant in the room that no one acknowledged. Miers only spoke of her experience concerning other judicial appointments, and not her own. At no point did anyone make any reference to her failed nomination. [JB: The ABA never had a chance to evaluate her nomination because it was withdrawn so quickly].
Brand voiced a strong disagreement with Miers, whose comment suggested–the last caveat notwithstanding–that the White House’s vetting may be inadequate. She said, our “process was rigorous. After the initial screening, we talked with other people about them. The Counsel’s Office recommended to the President to nominate them, preliminarily. Then the FBI does the background check. The Office of Legal Policy did the vetting, calling lawyers, speaking with opposing counsel, judges, prosecutors, everyone you can think of. And we did so in a very thorough manner. We were doing that memo internally. The ABA purports to be a neutral vetter of qualifications, but it was clearly politicized.” [JB: Remarkably, a minority of the committee thought that Janice Rogers Brown, Thomas Griffith, and Bill Pryor were “Not Qualified.”]
Brown observed that the Democrats “abused the process, both when in the majority, and after the Senate flipped. Miguel Estrada and nine other eminently qualified individuals were filibustered by Democrats. They specifically went after women an minorities that would one day be eligible for the Supreme Court, to smear them, so they would not be elevated. It was incredibly shameful. If ever there was an abuse you would want to correct, that was a principled thing to do.”
Leo offered his “own personal obser
vation” about the filibuster. “Inn 2005 there was some consideration of invoking the nuclear option. Republican senators decided not to do it, thinking that if they did it then, the Democrats may do it later.” [JB: There was a lot of laughter here.] Leonard replied, “[t]Hat tells you the story. The judicial filibuster has been a real cost in confirmations process for Republican administrations. We have the nuclear option in place now, and my own personal perspective is to keep it in place. I don’t think the politics make a whole lot of sense. I don’t think it makes a lot of sense from a constitutional standpoint. When dealing with nomination, it is a yes or no vote. You don’t have to put the process through filibuster to get permutations of legislation considered. We had an opportunity to get rid of it, but we didn’t. Now, that is the universe to maintain.”
Third, Judge Owen asked about the roles of the White House and the Justice Department, and the division of labor.
Brand, was “in the White House Counsel for the first 1.5 years, and then at the Office of Legal Policy for 4 years. The simplest way to explain it, is that Counsel and OLP worked together on lower courts. Counsel took the lead prior to nominations, and OLP took the lead after the nomination.
Leo relayed that ” it was sometimes useful for the Justice Deparmtnet to be in the nominating function, because they had a more effective ability to beat back Senators. It could be cast as a less political process if it was DOJ.”
Fourth, Judge Owen asked how Supreme Court nominations were different.
Brand explained that for SCOTUS nominations, the White House Counsel “took the lead in vetting. The process started during transition. During the transition there was already a list being compiled. We needed to be ready on inauguration date in case something happened. All of the lawyers in the Counsel office were in charge of vetting the most viable candidate. We had to read every opinion ever written. The reports had to be refreshed over time. At OLP, I helped in vetting process too. The process was fuzzier for SCOTUS.”
Brown said “if you knew you were down to Roberts and so-and-so, had to get stuff in library form the counsel office.” [JB: John Roberts had published a number of memos as a White House counsel].
Brand explained that “When Justice O’Connor announced her retirement, they already had a lot of work down on nominees. That list was reduced to a smaller list. OLP put up extensive binders on everything you can think of. That was done at Justice–it was an extremely labor intensive process.”
Leo spoke to the process. “There is going to come a time with the Supreme Court, and Court of Appeals nominations, where very important calculations about what political cost the White House is willing to bear. If you don’t have people in the White House who have pored over process, and dedicated substantial amount of time, and if no one is invested enough for intense White House engagement when the confirmation process goes south, then there will be a problem. I always wonder whether the entire Bork process would have been different had the White House more of a driver than the Justice Department. Judge Bork writes in the Tempting of America that they had a difficult time engaging White House personnel as the confirmation became more difficult. I wonder if that different if the White House was involved earlier on in the process.”
Miers added that “we were very shocked that we were able to keep the process quiet until the announcement.” [JB: Again, the elephant in the room was that her nomination somehow remained a secret until it was announced!]
Brown relayed a hilarious story from the eve of the Roberts nomination. There was a dinner at Ted Olson’s House. [JB: Years ago, Olson used to hold an annual backyard BBQ for Federalist Society chapter leaders at his Great Falls, Virginia home. When I went in 2008, Sam Alito was chilling by the pool in a polo shirt and slacks, while Robert Bork was sipping a drink on the porch. Surreal for a 2L. Olson stopped holding those events in 2010 or so.]. Brown explained that at the dinner, each table had a leading potential nominee for the Supreme Court. Judge Wilkinson was at one table, Roberts at another. Everyone “was looking for clues of who had the inside track. We had absolutely no idea who it was. But John Roberts did not take his jacket off for the entire dinner. It was incredibly hot. It struck me as a sign that he was very nervous. It turned out that he was the one who got the pick.”
Fifth, Judge Owen asked what lessons we can draw for future administrations.
Miers explained, that “we did have two nominations for the Supreme Court that took a large amount of time. When that was all going on, everything else was frozen. You couldn’t make any nomination on district or circuit courts, the senate wanted to focus on SCOTUS. It took us out of making progress for much too long. We need to convince nominees that the process would be supported, and it wouldn’t result in the process like Miguel had. That would be a great step forward.”
Brand agreed, explaining “[t]he efforts to find the people who can fill the right positions begins during the transition. You need to identify candidates. There has to be an effort to talk with the Senate during the transition about judicial confirmations.”
In some of the more revealing comments of the afternoon, Leonard Leo offered “three things” to consider.
- “First, process matters. You have to have an extremely rigorous process for vetting nominees for the bench. It had to be followed. There are a lot of pressures to walk away from the process.”
- “Second, personnel matters. People around this table understand the stakes, and are willing to spend political capital pursuing the right slate of candidates. one of the questions I like to ask people now, is how many votes do you want for your judicial nominees. If the answer is 70, 80, or 90, it is the wrong answer. You want 51. You want someone who you know well, and others know well, but has a record to apply the constitution faithfully. You need to fight.”
- “Third, this is a change from previous administrations. I’m not sure the “legislating from the bench” approach will be as effective a framework as it was in 2000 and 2004. What I find in the conservative movement now, people think about not just having judges who don’t create things that aren’t there, but who enforce things that are there. We should be looking for judges who understand duty and obligation, and enforce the structural constitution. I think the rhetoric in future battles needs to change. It is not just about judicial restraint. It is about judges who play a role enforcing the notions of constitutional limited government.”
Leo’s comments are very astute, and mirror points that Randy Barnett and I made in the Weekly Standard. Indeed, I think we have already seen the rhetoric shift in the second GOP debate, moving away from the cliche “judicial restraint.” During the Q&A, I asked Leo about the move away from focusing on candidates who profess a fidelity to judicial restraint, with a specific reference to the Chief Justice’s votes in the two Obamacare cases.
Leo replied, ” I didn’t say judicial restraint doesn’t matter. I said, the rhetoric and scope of attention has changed. It used to be in the conservative movement that we only focusing on judges finding things that aren’t in the Constitution. But that’s not enough of a conversation today. Sure we don’t want judges finding things that aren’t in the constitution. Granted. That is still in an issue. We just heard about Obergefell. There is also a question about enforcing the provisions in the constitution. In the conservative movement right now some of the most important issues are those where the structural constitution needs to be respected and enforced. Josh Blackman of course, very active in the Obamacare area, I assume some of what you are thinking in the structural provisions, federalism, separation of powers, etc so I think that needs to become part of the conversation. In terms of how you do it. Obviously, you try to find as much as you can from one’ s judicial record, what they’ve said about interpretation. I also think President Bush’s attention to humility was actually really important. That’s not something you can find on a piece of paper. What do you want from a judge? You want someone who demonstrates humility, that makes them understand their role in constitutional process. You also want someone who has been tried by fire at some point in their life. When you have those experiences, that enhances your ability to be independent. If you look around, at people you call great judges, they’re all smart, they all have good theories of interpretation, but they tend to be humble, had to face decision they would be rebuked for. That is kind of the way I look at it.”
This insightful panel should inform and any all discussions about the next round of judicial nominations in 2017.