On March 1 former White House Counsel Gregory B. Craig joined Skadden as a partner in our Washington, D.C. office. Greg brings an insider's knowledge of Washington, D.C. to the firm, and leads our Global Policy and Litigation Strategy practice. The group counsels companies and individuals in the areas of crisis management; crisis prevention; compliance and regulatory issues; government investigations; legislative, government and political relations; transactional implications for cross-border matters; and litigation strategy. This initial discussion focuses on the United States Supreme Court confirmation process and will be the first in a series of articles from Greg covering topics on which the group advises.
Greg served as White House Counsel to President Obama at the time of Justice Sonia Sotomayor's 2009 nomination to the Supreme Court and helped steer Sotomayor through the confirmation process. Prompted by the recent hint from Justice John Paul Stevens that he may step down at the end of this term, Greg agreed to share some of his insights into the nomination and confirmation process of Supreme Court justices.
What about Justice Sotomayor as a potential candidate stood out to President Obama?
Her impeccable qualifications, which include her personal character and professional integrity, judicial record of competence and adherence to the rule of law. This factor is so important that it should be the beginning of every discussion about a potential nominee to the Supreme Court.
What steps should nominees take to prepare for the process?
Courtesy calls to senators are an early and important part of the process. It is absolutely vital to prepare the nominee carefully for those meetings. It is rare that courtesy calls will win votes, but it is possible to neutralize or defuse the intensity of opposition. It also is essential to remember that courtesy calls can do real damage to the candidacy if they are not handled well.
No matter how problem-free a nominee may be, there will be issues associated with the nominee’s personal or professional past. It is important to identify those issues, prepare to deal with them in advance and be able to address them the moment they arise.
It also is important to have a comprehensive strategy and a mechanism to coordinate the various components of the confirmation process — legal issues, political issues, congressional issues, media and other outreach.
Are there any key factors that help a candidate navigate the politics that come into play?
It helps to have a powerful Senate champion. Sonia Sotomayor had Sen. Charles Schumer. Other justices had their own Senate champions: Stephen Breyer had Edward Kennedy, Clarence Thomas had John Danforth, Ruth Bader Ginsburg had Daniel Patrick Moynihan, Antonin Scalia had Alfonse D'Amato, and David Souter had Warren Rudman. Having a powerful and energetic senator in the nominee's corner — someone willing to go into battle on every issue — is enormously valuable.
What kind of prep work is desirable for a nominee?
It is not a sign of weakness for the nominee to spend time preparing for the hearings. Not even someone who has served as a judge for as long as Judge Sotomayor will be fully conversant with every legal issue that will be raised. No candidate is sensitive to all of the potential land mines that are unique to inside-the-beltway Washington, D.C. Not even someone as experienced and articulate as Chief Justice John Roberts should go into a confirmation process without spending time getting ready for it. That includes substantive briefings on the state of the law as well as extensive "murder board" simulations of the hearing process itself.
How critical to the process is it to share the personal story of the individual who has been nominated?
Where she came from, where she grew up, what she has accomplished in her own life — Justice Sotomayor's powerful personal narrative emerged repeatedly throughout the process and strengthened an already strong candidacy. During the first 48 hours after her nomination was announced, Justice Sotomayor was fully defined for the American public. To challenge her confirmation, opponents would have had to change the public's mind about her — something that never happened.
On the day of the announcement, President Obama gave a moving introduction of his nominee in the East Room of the White House, and Judge Sotomayor thanked her immigrant mother who raised her as a single parent in the Bronx and who sat proudly in the first row. It was one of the most powerful moments of the entire Sotomayor confirmation process.
Did you anticipate that Justice Sotomayor's confirmation would go smoothly?
As I said, every nomination — even someone as problem-free as Judge Sotomayor — will have some kind of problem that needs to be addressed and prepared for in advance. In his novel Supreme Courtship, Christopher Buckley describes a nominee who was voted down because he had disclosed on his questionnaire that he had been "mildly bored" while reading certain sections of To Kill a Mockingbird. This fictional account is only a slight exaggeration of the real process.
How do you think Justice Sotomayor will deal with commercial and business issues?
Justice Sotomayor has a sophisticated understanding of commercial and business issues from her experience on the United States Court of Appeals for the Second Circuit and at a private law firm. She received the strong support of business groups such as the Chamber of Commerce. From my perspective, the best evidence that she will be scrupulously fair in business and commercial cases, as in other cases, is her long judicial record of fidelity to the facts and controlling legal principles in each case. It is a reminder that the quality of the nominee (including her judicial record) remains the single most important characteristic in the appointment process, on business issues as on other cases.
Following a decade with no changes to the composition of the Supreme Court (from Justice Stephen Breyer's appointment in 1994 until Chief Justice William Rehnquist's death in 2005), we have seen three new appointments in the last four years. How important is an individual justice to the overall makeup of the Court, and what kind of candidate will President Obama look for if Justice Stevens retires?
Every new justice has a profound impact on the Supreme Court. Many justices have emphasized that the Court is a very personal institution. President Obama, of course, is very knowledgeable about constitutional law and the Supreme Court. First and foremost, he will want someone with outstanding qualifications. It will be interesting to see whether he departs from the recent practice of appointing sitting judges and instead chooses to nominate a candidate with a very different background, such as someone who has been in public life. President Obama has pointed out that many celebrated justices came to the Court with that kind of background.
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