Judicial Confirmation Process In Need Of Makeover

By Jocelyn Allison

Law360, New York (October 19, 2009) -- Do away with hearings. Set up a Blue Ribbon panel. Start rejecting nominees if they won't answer questions. Let the lawyers ask the questions.

The ideas for how to revamp the confirmation process for federal judicial nominees run the gamut, but as the U.S. Senate awaits nominations for several open positions on the district and circuit court benches, many lawyers agree: The process could use a little help.

“On one level, it's the way the Constitution envisions the process working, and there have been fights over Supreme Court nominations going back to the 1790s,” said Cliff Sloan, a partner at Skadden Arps Slate Meagher & Flom LLP.

“But at another level, it does seem as though the process has gotten out of whack, and you have these very stylized confirmation hearings, the elaborate Kabuki dance between the senators and the nominee, and I think there is a real question about whether the process itself can be improved,” he said.

At the district and circuit court levels, the confirmation process is far less intense than at the Supreme Court, with hearings often lasting a couple of hours and garnering less than overwhelming attendance, attorneys said, and in such an environment, some nominees are more likely to speak their minds.

But there can be more potential for individual senators to hold up an appointment because the pressure for them to move isn't as high without the nation watching, they said.

The longer a nominee awaits a vote, the more time there is for her opponents to attack and for her to end up being used as a political football, attorneys said.

“The fact that they did it so much more quickly 40 years ago, and before that, indicates they could do it much more quickly now,” said David Stras, co-director of the Institute for Law and Politics at the University of Minnesota. “It's just that politics is playing a huge role in slowing this process down.”

Bar the Holds

To speed the process, the Senate could limit the number of days a hold could be placed on a specific nominee or require an up or down vote within a certain time frame, extended only with consent from both parties, said Scott Thomas, former chairman of the Federal Election Commission and head of the political law practice at Dickstein Shapiro LLP.

To come up with confirmation-friendly candidates, the president could appoint Blue Ribbon panels with representation from state bar associations, retired judges and others who have experience in the legal field but no “ax to grind” to make a recommendation, Thomas said.

“I think it's helpful if members of Congress and the Senate in particular are detached a little bit from the initial nomination process as well as the evaluation process, and if there are influences brought to bear on the confirmation process by outside groups,” he said.

Thomas suggested getting the American Bar Association and similar organizations more involved in vetting potential nominees.

“If you rely more on these Blue Ribbon panels and the rankings or ratings of outside groups to help filter the process and evaluate these folks, chances are you're going to come up with less controversial people,” he said.

But Burley Mitchell, retired chief justice of the North Carolina Supreme Court, questioned the wisdom of creating broader panels. He serves on a three-person panel advising Sen. Kay Hagan, D-N.C., on recommendations for federal judicial nominees in the state of North Carolina.

“To me, [having a broader panel] is the worst possible result; it is both anti-democratic and nonfunctional,” said Mitchell, who heads the appellate advocacy and government relations groups at Womble Carlyle Sandridge & Rice PLLC.

“Elections have consequences,” he said. “The president is entitled to appoint people of his political persuasion and not have to run it through a group that has a member of every special interest group in America on it.”

Mitchell suggested eliminating the role of the ABA in vetting candidates, saying he believed the group tended to base its recommendations in the past several years more on the person's general political philosophy.

“I think it's good to have a person who has a track record and who has been vetted by people who are interested in politics, in the sense of having to deal with the people, having to know them down at the fundamental level and represent them at the selection,” Mitchell said.

“I think the process could be sped up, but I think its a matter of people who are already involved getting the job done faster,” he said.

The backlog in judicial appointments is common for a new presidency, when members of the losing party in the Senate work to slow down the process as payback for similar behavior when they were the controlling party, said Robert Kelner, chair of the election and political law practice at Covington & Burling LLP.

“The huge problem is if one political party decides to break that vicious circle, it has no assurance that the other political party will do the same later on, so it's almost a prisoner's dilemma that continues the pattern indefinitely,” Kelner said.

At the same time, the Internet has provided easier access to a greater amount of information about a particular nominee, giving congressional staff an ever-growing list of questions to ask and more grist for anyone interesting in opposing the nomination, he said.

More Stealth Candidates?

The intensity of the vetting process, along with increased ethics requirements, has the potential to scare away qualified candidates, some lawyers said.

It also encourages what Kelner called the “stealth candidate” model, in which candidates leave a thin trail in the public record so nothing can come back to haunt them during confirmation.

“You have to ask yourself do you want as a federal judge somebody who has been angling for a federal judgeship since at least the first year of law school or do you want somebody who has lived a life, had a career and then ripened to the point that they wanted to engage in public service and become a judge,” he said.

“I prefer the latter, but the latter candidate is much more likely to have a record that will include perhaps controversial points,” Kelner said.

Fed up with circumspect answers from candidates and grandstanding among senators, some in the legal community have suggested doing away with hearings in the confirmation process for federal judicial nominees.

But with the prospects dim for such a move, some attorneys are focusing on how to make the hearings more useful.

Seth Rosenthal, a partner at Venable LLP, has suggested adopting a process similar to that used during hearings for the Iran-Contra or Watergate affairs, and letting trial lawyers ask the questions at the direction of the senators.

With so many demands competing for their time, senators often rely on their staff to do the research for them and to formulate questions, which can lead to stilted questions often recited verbatim, nonrevealing answers, and relatively little or no follow-up, Rosenthal said.

Rosenthal suggested having one small team of practicing trial lawyers per party to lead the questioning in the Judiciary Committee.

The lawyers would have more time to prepare than senators, and would also be more used to asking questions and bearing down on witnesses to get answers, he said.

“I actually do think that having more searching hearings might reduce the level of rancor,” Rosenthal said.

“Meaningfully discussing nominees' views on the law would eliminate any inclination to go looking for supposed controversies unrelated to those views, and by steeling the Senate's resolve to reject nominees who hold or hide unduly controversial views, ultimately might cause the White House to work more cooperatively with the Senate to come up with nominees that the opposition party in the Senate finds palatable,” he said.