Federal Judiciary

Lecture by Gregory Craig: “Picking Supreme Court Justices”

By Akin Gump Supreme Court Practice Group

Lecturing at Georgetown University on Tuesday, former White House counsel Gregory Craig offered insider insights on President Obama?s selection of federal judges?especially Supreme Court Justices.  Last year, Craig led the search for Justice Souter?s replacement that culminated in the nomination of now-Justice Sotomayor.  The occasion for the lecture was the Bernstein Symposium on Governmental Reform.

From the outset, Craig cautioned the audience against reading too much into his statements: ?A lot has happened since I was White House counsel.  And a lot has not happened,? he added, alluding to the possible retirement of another Justice soon.

The White House had advance warning about Justice Souter?s retirement:  according to Craig, by early spring 2009, they knew from a reliable source that Souter would retire.  That knowledge provided the president?s team with the luxury of identifying and vetting potential nominees before the press got involved.  At the same time, they were eager to go public because they wanted a new Justice at 1 First Street NE by August to give him or her time to adjust before the first day of the Court?s new Term.  When the story leaked in late April to two Washington journalists, Craig called Souter to ask how he wanted to handle the situation; Souter chose to send his resignation letter to Obama immediately, on May 1, and Obama made the announcement later that day.

Never opening closed doors too far, Craig delved into the selection of the short list of potential nominees to replace Souter only during the question-and-answer period afterward.  Asked whether the team tasked with creating the short list considered ethnic and gender diversity as factors, Craig responded that diversity ?simply wasn?t part of the discussion,? because the president had already taken diversity into account in his earliest suggestions.  And he will take diversity into account again, Craig believes, in the event of any new vacancy.

The heart of Craig?s lecture was his description of eight ?lessons? the White House learned in nominating a Supreme Court candidate (these could alternatively be described as ?guiding principles,? for the White House used them all).

Lesson No. 1: The nominee?s qualifications and character must be outstanding, lest any weakness become a talking point for the opposition.

Lesson No. 2: The nominee should have a compelling personal narrative.  Sotomayor fit this bill, raised in a South Bronx housing project by a hardworking, Puerto Rican single mother and going on to graduate from Princeton University and Yale Law School.

Lesson No. 3: The American public?s view of the nominee will likely be ?defined? within forty-eight hours of the nomination because that first impression can be difficult to shake.  Sotomayor?s appearance with her mother in the White House when Obama announced her nomination was not an afterthought in shaping her public image.  This lesson, Craig acknowledged, is old and common knowledge on both sides of the aisle: within an hour of Ronald Reagan?s nomination of Robert Bork to the Court, Senator Edward Kennedy attacked the nominee in a long speech on the Senate floor that controlled the dialogue throughout the Senate proceedings.

Lesson No. 4: The nominee needs a Senate champion.  This lesson, too, was learned long before Obama?s presidency.  After naming Chuck Schumer as Sotomayor?s ?guardian,? Craig rattled off a major Senate backer for every successful Supreme Court nominee in recent history, including Senator Warren Rudman for Justice Souter and Senator Alfonse D?Amato for Justice Scalia.

Lesson No. 5: Identify the issues that need to be addressed in advance.  If the candidate does have weaknesses, the opposition researchers will find them.  Part of this is reining in single-issue groups, who will intervene if they believe that the nominee has taken a firm stance on their issues.  Craig noted that the National Rifle Association was a master of this strategy in Sotomayor?s confirmation, portraying a vote in her favor as anti-guns, a vote against as pro-guns.

Lesson No. 6: A single head of strategy should unite ?the legal people, the political people, and the outreach people? in any nomination.

Lesson No. 7: Courtesy calls by the nominee to Senate offices are vital.  Sotomayor set the record ? which Craig predicted will never be broken ? with eighty-nine visits. Preparation for those visits is vital, because the hot-button issues discussed there will inevitably be raised in the Senate Judiciary Committee.  While few critics are likely to be won in these calls, it is possible to ?neutralize or defuse? the intensity of their criticism.  Yet damage can also be done, with Craig citing the experience of Harriet Miers as ?exhibit A.?

Lesson No. 8: The nominee should spend time studying for the confirmation hearing.  Even the most brilliant jurists, said Craig, must undergo special legal briefings and ?murder boards? ? intensive drills and questioning ? on constitutional issues that are uniquely salient in the Washington beltway.

Full post as published by SCOTUSBLOG on March 05, 2010 (boomark / email).