“Advice and Consent” Inside the Judicial Nominations Process

A year ago, I anxiously watched CSPAN for the final vote on then-Judge Neil Gorsuch’s nomination to the Supreme Court. I felt a vested interest: My recently published law review note about his labor and employment decisions had played a small role during the nomination hearing. But more importantly, after reading his cases, I agreed with his jurisprudential approach and strongly believed he should be confirmed. I followed the process for weeks. During the hearings I watched the faces of staffers behind Senator Chuck Grassley, judiciary committee chairman, not knowing they soon would become my supervisors and co-workers.

I worked as a law clerk with the nominations unit of the Senate Judiciary Committee during the summer of 2017 and had the privilege of returning through Stanford Law’s Externship Program for winter quarter 2018. The committee has expansive jurisdiction. Our unit, however, focuses on the federal judiciary: its composition, members, and oversight. During my time, we concentrated primarily on judicial and executive branch nominations. These include Article III judges and Article I judges as well as political nominees to federal agencies, particularly the Department of Justice, such as U.S. attorneys and marshals. This task, particularly of vetting and confirming Article III judges, is significant. The job of “advice and consent” places our activities at the intersection of all three branches of government. The job requires independence and thoroughness as part of the critical system of checks and balances.

While I learned much about legal doctrines and analytical thinking, the primary lesson I take with me is a deeper understanding of the nominations process and why it matters—topics I highlight in this essay.

"Advice and Consent” Inside the Judicial Nominations Process
Photo courtesy of Camille Peeples

From the White House to Blue Slips

Xổ số đài thoải máiBefore the committee becomes involved, the White House generally consults home state senators about potential nominees for vacancies in those states. Each state functions differently, as some have nominating commissions or boards, while others rely on nomination applications through the home state senators’ offices. This is outside the scope of our work; however, it is relevant to the extent that the White House adequately consults the home state senators in selecting judicial nominees.

The president is expected to consult with home state senators in selecting nominees. This rationale underlies the Senate blue slip: a century-old practice to ensure that home state senators are consulted before the nomination. The chair of the Senate Judiciary Committee sends a letter on blue paper—hence the name “blue slip”—to both home state senators asking their opinion of a given nominee. It is a tradition but not required under Senate or committee rules. As the clerk responsible for typing, printing, and hand delivering blue slips, the process often feels more uneventful than how it is described in the press.

Xổ số đài thoải máiThe blue slip recently garnered controversy because of different views of how the blue slip practice should be applied. My first assignment was researching the hundred-year history of the blue slip courtesy and the policies of former chairs. Since 1917, two chairmen have refused to hold a hearing for nominees without two returned positive blue slips: Senator James Eastland (1956–1978) and Senator Patrick Leahy (2001-2002 and 2007–2014). The other 16 chairmen’s practice or policy was that a negative or unreturned blue slip would not necessarily prevent a nomination from moving forward. Senator Joe Biden and Senator Ted Kennedy, during their tenures as chairmen, did not consider missing or negative blue slips to be an absolute bar. Previous chairmen held hearings without returned blue slips and after negative blue slips. For two recent nominees—Judge David Stras and Judge Michael B. Brennan—Chairman Grassley held hearings despite a missing blue slip after determining that the White House engaged in adequate consultation.

“I was challenged to consider doctrine and case law, statutory interpretation and constitutional structures, personalities and politics. The position opened doors to new professional experiences and connections.”
-Camille Peeples

 

Xổ số đài thoải máiAlthough my involvement with blue slips was largely administrative, fulfilling the logistical requirements of the tradition requires an awareness of its place within blue slip history and ongoing political debates.

Vetting and Committee Hearings

Setting blue slips aside, my externship allowed me to participate in vetting performed by the committee. After the White House announces nominees, our process begins when the White House Counsel’s Office sends a signed nomination to the secretary of the Senate, who refers the nomination to the Senate Judiciary Committee. Upon receipt, I print and deliver blue slips. Then we wait for relevant background materials from the executive branch. The Office of Legal Policy at the Department of Justice works with nominees to complete and return the Senate Judiciary Questionnaire, which seeks disclosure of all past writings since college, information about professional and legal work, potential conflicts of interest, and financial disclosures. The Federal Bureau of Investigation also conducts a background investigation and submits findings.

Once received, the attorneys at the nominations unit begin vetting. For each nominee, we receive hundreds to thousands of pages of writing, including law review articles, briefs, interviews, and opinions. One recent circuit court nominee’s packet included 15,000 pages. Nominees with prior judicial experience often have hun-dreds of cases, too. We read everything and condense our findings into a short memo, 3 to 10 pages, to be circulated to other Republican members of the committee. Once we review these materials, the chairman convenes a hearing. Attending these hearings was a special part of the process for me. It brought the academic aspects to life, as nominees answer questions in real time about the materials I reviewed. I sat with the staff attorneys behind Chairman Grassley and the other senators, a privilege of the position that will never get old.

From an academic standpoint, my legal education here ran the gamut, as nominees submit wide varieties of substantive legal writings produced during their careers. Through the process, I learned about criminal procedure, equal protection, substantive due process, Religious Land Use and Institutionalized Persons Act claims, employment disputes, and securities litigation, among many others. I read far more law review articles at the committee than during my time on Stanford Law Review and as an articles editor at Stanford Law & Policy Review.

As a committee practice, we wait at least 28 days after receiving a nominee’s materials to hold the hearing to allow both parties time to review. At the hearing, home state senators generally introduce nominees from their state, and then members of the committee ask rounds of questions. This allows them to inquire about issues discovered during vetting, to confirm the nominees’ temperament and qualifications, and to discuss the nominees’ approach to judicial decision making. After the hearing, senators have one week to submit additional questions for the record. Once the nominees respond, the chairman schedules a vote at a mark-up meeting, where the committee votes whether to favorably report the nominee to the full Senate for confirmation.

This vetting is essential, albeit time-consuming. Vetting requires thinking critically about nominees—their qualifications, judgment, judicial philosophy, and character. Most nominations proceeded; however, when issues regarding character, experience, and impartiality have arisen, Chairman Grassley has asked the White House to rescind nominations. Many such nominees were rejected—some publicly, most privately. And while this can be frustrating after the time invested, and to observers who wonder why those nominees were selected at all, these failed nominations show that checks and balances are in place and working.

Executive Calendar and Full Senate Votes

Once reported out of committee, the nominee is placed on the Executive Calendar; the decision when to schedule a floor vote belongs to the Senate majority leader. As I am writing this in May 2018, 33 Article III judicial nominees are pending on the Senate floor: 1 to be a circuit judge and 32 to be district judges. Democrats required cloture votes to be filed and up to 30 hours of floor debate for all but three judicial nominees and all Main Justice nominees. Chairman Grassley has called on the Senate to work nights and weekends, as necessary, to clear this backlog. Those requests have not been met.

To date, the Senate has confirmed 1 associate justice, 21 circuit judges, and 17 district judges.

Final Thoughts

Xổ số đài thoải máiIt was an honor to work here at a record-breaking time. During 2017, Chairman Grassley and the Senate Judiciary Committee processed and confirmed 12 circuit judges—more than in any other first year of a presidency since the Judiciary Act of 1891 established the modern circuit system. Several nominees are historic firsts in their own respect. Judge Amul Thapar became the first-ever Indian-American to serve on the Sixth Circuit, and Judge James Ho became the first Asian-American on the Fifth Circuit. Judge Allison Eid is the first woman to hold a Tenth Circuit seat in Colorado, and Judge Amy Coney Barrett is the first woman to hold a Seventh Circuit seat in Indiana. If confirmed, current U.S. Magistrate Judge Terry Fitzgerald Moorer will be the first African-American judge on the Southern District of Alabama, where Selma is located.

As a law student, this externship was more than an academic inquiry into legal doctrines and their political implications. I was challenged to consider doctrine and case law, statutory interpretation and constitutional structures, personalities and politics. The position opened doors to new professional experiences and connections. My written work was distributed to offices across the Senate. I briefed Republican chief counsels and attorneys from the Department of Justice. I met senators and several nominees at their hearings. Of particular significance to me, I recently had the privilege of attending the investiture for a newly confirmed district judge, whose confirmation vote occurred during my first few weeks at the committee. I was able to see the process come full circle, and it reminded me of the magnitude of our work.

As a future practitioner, confirming judges holds great significance, first because it addresses judicial emergencies, creating better access to justice for litigants across the country. We confirm judges that my classmates and I may soon face in court, as we begin our careers. Finally, by confirming qualified men and women to life-tenured judgeships, we can change the face of the federal judiciary. To me, this aspect is most important: Our efforts support the rule of law by confirming principled jurists who believe the role of a judge is to evaluate facts and law—who take care to identify what the law is, not what it should be. As a young conservative in a turbulent political and legal world, there is no more rewarding or significant task.