A Behind-the-Scenes Look At Getting A Justice On The Supreme Court
Boies Schiller partner Michael Gottlieb has been involved with multiple nominations and confirmations of Supreme Court justices. He gave us a behind-the-scenes look at SCOTUS confirmations and what it would take for Chief Judge Merrick Garland's to go through.
As Special Assistant to the President and Associate White House Counsel for President Obama, Michael was involved in Kagan's vetting and Sotomayor's vetting and confirmation; as part of Senate Judiciary Committee member Sen. Chuck Schumer's legal staff, he advised on Roberts' and Alito's confirmation hearings. Before that, he graduated from Harvard Law and clerked for Justice Stevens.
"There's the ordinary process, and then there's this year," Michael said. "The two don't look anything alike. What's happening this year is political theater." Since Senate leadership has already said that there won't be a hearing, what's happening now is posturing to see whether the White House can create enough dents in the armor to get a hearing. (If they get a hearing, maybe they can get a vote, and if they get a vote, maybe they can get enough votes for a confirmation).
"This is a different experience and process than any nomination in our lifetime. The prior procedures are just sort of thrown out of the window."
There are a few different paths for DC Circuit Chief Judge Garland to get confirmed, Michael tells us, and it's impossible to know now which is most likely. Here's the rundown of the options:
1) Opposition to Chief Judge Garland's nomination gradually diminishes. There's a decent amount of time on the clock in 2016. It's possible that as things go along, public pressure could build and Republicans on the Judiciary Committee could decide to give him a hearing, and it's possible that they could decide to give him a vote. That doesn't seem to be the likely outcome, but I don't think we can rule out that possibility.
2) If Donald Trump becomes the presumptive nominee, and Republican members of the Senate decide that Judge Garland is a safer pick for SCOTUS than whomever they expect Trump might name. That's possible, although I think that's also unlikely.
3) Hillary Clinton wins in November (assuming that she becomes the Democratic nominee). Some Republicans have already come out and said that if Hillary Clinton won, they'd seek to give Judge Garland a vote in the lame duck session. Most Republicans know potential nominees exist who are farther to the left than Judge Garland.
4) The Democrats win the Senate, which turns over on Jan. 3, while Obama remains president until Jan. 20. If the Senate flips, President Obama could very easily renominate Judge Garland, regardless of who wins the presidential election; or, if Obama had a strong majority in a Democratic Senate, he could nominate anybody he wanted and probably get them confirmed.
To give a sense of how different the political climate is these days, consider that back in 1916 when Supreme Court Associate Justice Charles Evans Hughes resigned to run for President, his successor, John Hessin Clarke, was nominated by President Woodrow Wilson and unanimously confirmed 10 days later.
Though confirmations can be quick, the vetting process before a nominee is announced is extensive. It can take many months, says Michael, though it can be accelerated. All of the judges reported to have been on the short list for this nomination had previously been vetted: Judge Garland was previously vetted for Supreme Court vacancies, for instance, and Judge Sri Srinivasan for the DC Circuit.
When a member of the White House Counsel's office is asked to vet a candidate for any office, "you want to be able to accurately tell the President and White House Staff, 'Here's what's going to come up if you nominate this person, at their hearings, by those seeking to oppose this nominee from getting confirmed.'"
Vetting includes an examination of the potential nominee's tax and medical records; reading all of the press written about them; checking any social media presence (sure to become a much larger issue for the next generation of appointees); reading any articles they wrote for their high school or college newspaper; speaking with former law review colleagues or law school peers to see if there are any hidden issues that could result in negative testimony at a hearing; if it's a judge, reading every opinion he or she has ever written; if he or she was in government, looking through the files to the extent that they exist, and seeing if there are any controversial issues that he or she may have worked on.
One of the reasons you typically see judges nominated to be Supreme Court justices is "because there is a tried-and-true formula for confirming judges, and the documents involved with such confirmations are pretty straightforward." During the confirmation process, the party that opposes the nominee can make demands to see documents written or received by the nominee, some of which they know they won't get, but picking a fight over access to documents can slow down the process. For a sitting judge who's been on the bench for years, the documents are less important because there are published opinions to read, and so it is less like that there will be document fights that slow down the process.
For Chief Judge Garland, "I think it's unlikely that there would be document fights." When it came to Justice Kagan, there was greater interest in documents because she served in the Clinton White House Counsel's Office and as Obama's Solicitor General. There were categories of documents Republicans could say they really needed to look at (such as memos, emails, internal Executive Branch files), and those kinds of requests can slow down the process a bit because of the need to collect all the documents for production and ensure that there are no privilege concerns with turning such documents over to Congress.
After a nomination, in an ordinary process, the White House will work with the nominee to submit a written questionnaire; here, several Judiciary Committee members have stated that they would be willing to review Chief Judge Garland’s written questionnaire. After a hearing, Senators may submit additional questions—QFRs (questions for the record)—and the nominee will spend a great deal of time ensuring that all of those questions are answered. Michael's participated in “moots,” or mock hearings, conducted by both the Executive and Legislative Branches. The White House brings in constitutional law professors, and sometimes former Senate staffers, to lead mock rounds of questioning where they play Senators to prepare the nominee for the hearing. Senators also do mock Q&As where experts will come in to play the nominee and allow the Senator to practice his or her questions.
In his own practice, Michael tells us that he's been busy helping clients with cybersecurity and data privacy issues. For example, in November, he helped negotiate LifeLock's $100M settlement with the FTC. Michael also recently concluded a large matter for a client in the investment management space resulting in a highly publicized settlement with the SEC.
He also keeps up an active appellate practice; he recently received a favorable judgment from the Eleventh Circuit reviving a defamation action on behalf of Pras Michel, a member of the hip-hop group The Fugees. And he recently filed two Supreme Court amicus briefs, including a major brief in the United States v. Texas immigration case representing a group of senior former US immigration officials.