Appellate Judicial Appointments during the Clinton Presidency: An Inside Perspective

INTRODUCTION This essay provides an overview of the federal judicial nomination and confirmation processes from the perspective of a former Clinton administration attorney involved in the judicial selection process from 1997 to 2001. It then focuses on judicial appointments to the United States Courts of Appeals for the Fourth and the Ninth Circuits to illustrate the complex political and historical dynamics of appellate appointments during the divided-government phase of the Clinton presidency, when the legislative and executive branches were controlled by opposing parties. This essay is intended to provide practitioners and judges with a better understanding of how the judicial appointment process functions, and to add a participant observer account to more detached scholarly analyses of the process. THE JUDICIAL APPOINTMENT PROCESS Oliver Wendell Holmes's observation that the life of the law is rooted less in logic than in experience (1) applies equally to the judicial appointment process. The interdependent and sometimes competing roles of the legislative and executive branches are described in general terms in the constitutional text, (2) but the inner workings of the nomination and confirmation processes are the product of the gradual accretion of executive and legislative practices and prerogatives developed over time, and with some regional differences. The Executive Branch Presidential administrations have traditionally handled appellate and district court nominations somewhat differently. During the Clinton administration, the White House exerted greater control over the selection of appellate judges, while home-state senators who shared the president's party recommended candidates who served as presumptive nominees for district court vacancies. With the exception of President Carter, who established a merit selection commission system that was all but mandatory for appellate judgeships and recommended for district court vacancies, most modern presidents have adopted this shared system of nomination authority. (3) This essay will focus on the selection of appellate judges. Upon the submission of a resignation or retirement letter from an active appellate judge, members of the administration's judicial selection team, headed by the White House Counsel, developed brief biographical profiles for a of potential candidates from which a few leading contenders were selected for interviews. Candidate sources included the candidates themselves, home-state Senators, prominent lawyers, government and Democratic party officials from the relevant state, members of the judicial selection team, and federal and state judicial almanacs. There was rarely a shortage of candidates; the term short list was a misnomer in jurisdictions with large and talented legal communities. However, on occasion, the selection team reached out to lawyers in the relevant region to solicit additional names to deepen the pool. Consultation with home-state senators was a critical part of the pre-nomination stage of the appointment process. Pursuant to the longstanding tradition of senatorial courtesy, home-state senators from both parties had veto power over the President's judicial nominees from their states, through the blue-slip policy. Following the nomination of a candidate, the Senate Judiciary Committee chair distributed a blue form to each home-state senator seeking approval of the nominee as a prerequisite to scheduling a confirmation hearing. Failure to return a blue slip, or the return of a blue slip beating an indication that a senator opposed the nomination, would doom a nominee's chances of confirmation. Consequently, pre-nomination consultation with a prospective nominee's home-state senators was an essential, if time-consuming, part of the judicial selection team's work. During the Clinton presidency, consultation ranged from merely notifying home-state senators of a nominee's identity to the selection of a consensus candidate approved in advance by home-state senators as well as the President. …