Memo to Elena Kagan
From: Assorted Murder Board Alumni
Re: A Few Modest Words of Advice for the Confirmation Proceedings
The Solicitor General had no doubt received much unsolicited advice over the past weeks regarding the upcoming confirmation proceedings to take place in the Senate Judiciary Committee. On June 15 at its Dupont Circle offices, the Aspen Institute’s Justice and Society Program convened a roundtable of five alumni drawn from past White House Counsel offices and the Department of Justice to discuss of some things that the nominee should, and should not, do during the political theatre that is a Supreme Court confirmation process.
And what are murder boards? Those are the preparation sessions where staff and volunteer “sherpas” come up with the most difficult, irritating, and offensive questions that they can conceive of for the nominee. As practice, just in case a Senator should ask. Of course, nobody would ask something that outrageous. Of course not.
Adam Liptak, roundtable moderator and Supreme Court Reporter for The New York Times, observed that in the middle ground between questions that the wise nominee replies to by saying that this is a case likely to come before the Court (and therefore under judicial canons of ethics, not appropriate to comment on), and questions that are so open-ended and speculative that the questioner would need to provide more specifics, lies a spectrum of issues that give insight into the judicial philosophy of the candidate (of more interest to lawyers and Senators than to the public tuned to C-SPAN) personal history, and past writings.
Since Kagan’s brief tenure as the nation’s first female Solicitor General was preceded by years as first female Dean of Harvard Law School, and before that as a law professor with a portfolio remarkably slim in writings, there is not a great deal to work with. The most fruitful ground for Judiciary Committee staff to comb through, and now probably under intense scrutiny, are her writings while on the staff of the White House Counsel’s office. As to that, she can claim that she represented a client, and not her own views.
Unfortunately for Kagan, in a 1995 article, she offered the opinion that Supreme Court confirmation hearings should offer the opportunity for the thorough review of the nominee’s views on a variety of legal and constitutional views. Senators will no doubt use her own formulation to insist on an unusually thorough airing of her views on a variety of issues to fill in gaps in what we know about her views.
1. Rachel Brand (former Justice Department Attorney, who prepared Chief Justice Roberts and Justice Alito for their hearings): Kagan will receive questions on broad constitutional issues like the commerce clause and the First Amendment, and should answer those questions in a substantive way; but no nominee should comment on their agreement or disagreement with specific decisions of the Court. Tough questions for Kagan will include her claim in her Solicitor General confirmation hearings that her written record reflects only a role giving advice to a client---since in both her role as a policy counsel to the White House, and as a Supreme Court law clerk to Justice Marshall, more was expected than just “channeling” the views of her principal. She claims that she was a “pipsqueak” to Justice Marshall’s “giant”, but she still was expected to express her own views of cases, and Senators won’t let her walk away so easily. She’ll get tough questions from Republican Senators about her role in the Solomon amendment litigation where she was a party to an amicus brief—in other words, she was the client, not the lawyer. Having said that, barring some bombshell revelation, which seems unlikely, given her personal history and career trajectory, Kagan can expect to win confirmation.
Lanny Davis (formerly with the Clinton White House) Before Bill Clinton did a press conference, Davis was the guy assigned in prep sessions to ask the most obnoxious questions, so that the President could vent his ire on a stand-in, and not on the live reporter who might bring the question up in the live event. Murder boards fill the same function in preparing Supreme Court nominees, and the practice is critical. Kagan is a centrist and a bridge-builder, and her confirmation would be welcome. Still, she will face some knotty questions, and Davis was willing to share the five toughest he could think of:
1. During the Paula Jones controversy, what were you, as a government lawyer paid by the taxpayers doing giving legal advice to President Clinton on a civil lawsuit brought by Jones. The President had personal counsel. Why was the White House Counsel’s office also offering advice to him?
2. Why did you try to prevent military recruiters from recruiting on the Harvard Law School campus. The case against the Solomon Amendment was so weak that the challenge to it lost by a 9-0 vote in the Supreme Court. As a legal scholar, didn’t you know how weak your position was?
3. Do you believe that the 14th Amendment includes a right to privacy? How would you have voted if you had been on the Court for the case that first announced that right, Griswold v. Connecticut? (note: Griswold found a right to privacy not in the explicit language of the Constitution but in what Justice Douglas, writing for the majority, termed penumbras and emanations. Griswold provided the foundation for the right to privacy that the Court based its decision upholding a right to abortion on in Roe v. Wade, and has been roundly criticized by the “strict constructionist” school of constitutional interpretation.)
4. Is waterboarding constitutional? Can torture ever be constitutional? Answers to that question will require Kagan to either adopt or disavow comments by Attorney General Eric Holder, an uncomfortable spot for the nominee, since Holder is at least temporarily still her boss.
5. Should suspects in terrorism cases receive Miranda warnings?
Ken Duberstein, who has shepherded Supreme Court nominees from Sandra Day O’Connor to Clarence Thomas and David Souter believes that Kagan’s confirmation is almost certain. The hyperventilation on the far right and far left, most notable as a fundraising technique, is what takes the process into the realm of political theatre.
Duberstein’s do’s and don’ts for Kagan are distilled from his many forays into the process. He calls them his “Eleven Commandments”:
1. Personal stories are compelling. Use them.
2. Don’t answer press questions during courtesy calls.
3. Practice, practice, practice for the hearings.
4. Be prepared for the kitchen sink at the hearing. No question should be considered too obscure or too outrageous.
5. The Constitution stops at the foot of Capitol Hill. Don’t expect that your questioners will have a subtle command of its nuances. And remember, that there are no bad questions, only bad answers.
6. Tell the truth; and tell it simply--don’t “shovel.”
7. Senators welcome “mea culpas” for past errors real or imputed—and the American people welcome the humility it implies.
8. Pause for seven seconds before answering any questions. Think about the ramifications of your answer beyond the hearing room.
9. Have an answer ready for the question you most want not to be asked.
10. The microphone remains on event when the Senators leave. Don’t be caught in an unguarded moment with a hot mic.
11. You have the best lobbyist in the world on your side—the President of the United States. Use his influence judiciously if it is needed.
William Marshall, a Professor of Law at the University of North Carolina and former Special Counsel in the Clinton White House bemoaned the politicization of the confirmation process; and its effect on who is tapped as nominee. Marshall believes that potentially great potential candidates to be Justices today, and in the past, could never survive the confirmation process, due to personal factors or past writings.
A nominee needs to have is brilliance, not just on issues of jurisprudence, but also on building coalitions within the Court and understanding the political ramifications of decisions.
The confirmation process can be an opportunity for statesmanship, but in “a town with the shortest memory”, Senators don’t tend to think that the methods they apply to the nominees of the opposing party may one day be turned around on their own party’s nominee.
The confirmation process is also a mirror on the President himself. Marshall believes that the military recruitment controversy is not about Kagan herself; rather it is intended to reflect back on the President who nominated her, and whose views on the military are one of his vulnerabilities. Marshall observed some of the uses of the Supreme Court nomination process as a political tool:
1. Sometimes all the President wants to do is cross the finish line. Expending political capital on a particular nominee means it is not available where it is more urgently needed.
2. Sometimes, the nomination is about constituencies, geographic, demographic, or otherwise. The Sotomayor nomination was a good example.
3. Nominations can be about a particular issue. During the Roosevelt era, the key issue in nominating Supreme Court judges was executive power, and that issue may also have been on President Bush’s mind when he nominated a trusted advisor, his White House Counsel Harriet Miers.
4. A nomination can be used to articulate a judicial vision—as President Bush arguably did with the Roberts nomination.
5. Sometimes, you win by losing. While not to the Supreme Court, President Bush’s failed nomination of Miguel Estrada to the DC Court of Appeals illustrates the principle. The brutal treatment and filibuster by Senators of a Latino judicial nominee with a compelling personal story and sterling academic and professional credentials provided the Bush administration with a story of legislative hypocrisy useful in the narrative of later confirmation hearings.
Stuart Taylor is a Contributing Editor for Newsweek and National Journal and a Non-resident Senior Fellow at the Brookings Institution. The confirmation hearings for Kagan, he said, are all about positioning for the 2010 Presidential elections. He observed that no sitting Justice, with a record on a variety of issues that offends at least one constituency, could be confirmed now; a coalition would form against each of the sitting justices. Taylor offered the hope that Kagan would not take her well- known political savvy to the point of cynicism, in distinction with the Sotomayor confirmation hearing in which, he said, the nominee’s determination to be uncontroversial barred any serious discussion of her judicial philosophy, and rendered the proceedings useless as a window into her approach to the work of the Court. As for Lanny Davis’s tough questions, Taylor’s view was that the nominee should not answer any about torture or the constitutional rights of terrorists—it is an ideal case for the nominee to say that these are matters that may come before the Court.
The panelists all agreed that Kagan is likely to be confirmed to the Court by the traditional opening of its new Term on the first Monday of October: if she can survive presiding over years of Harvard Law School faculty meetings, she can survive whatever grilling Senators are preparing for her. So, if you are checking your RSS feed General Kagan, you may want to note these tips from experienced insiders. Get ready for the questions you don’t want to answer, and remember that at the end, a judicial robe awaits you.
