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How Bad Will Confirmation Process Get? Ask These Would-be Judges

Wondering what a U.S. Supreme Court nominee might face in a tough confirmation battle? Look at the nation’s Circuit Courts of Appeals.
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Anyone hoping for clues as to what a U.S. Supreme Court nominee anticipating a tough confirmation battle might face should look to the nation’s circuit courts of appeals and the people who almost served as judges.

Supreme Court nominations have historically been rife with partisanship — in a much more public way than have lower appellate, and especially district court, nominees, judicial experts say.

But while the selection and confirmation process for Supreme Court justices is much different from that of appellate court judges, lower confirmation rates are one way in which their collective experiences may very well intersect this time around.

President Obama’s Supreme Court nominee will likely be an appeals court judge who was overwhelmingly confirmed to his or her current seat, based on the names most often mentioned as being on the shortlist. Republican leaders in the Senate, however, have insisted that they will not even grant the president’s appointee a private meeting, much less a hearing and subsequent vote.

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The stakes are high and the process affects the nominees in a profound and emotional way, former unsuccessful nominees to the appellate courts say.

That person will be “pilloried, maligned, slandered and libeled,” said Bonnie Campbell, a former Iowa attorney general who was nominated in 2000 by former President Clinton to the 8th Circuit Court of Appeals. Her own nomination was mired in a political fight as Republicans objected to the former gubernatorial candidate’s views on some conservative Christians as “the radical right."

“The American people know that it is not about you. It is not personal. You have been put in the partisan cross-hairs, and, anything might be said about you … and most of what is said won’t be true,” Campbell said. “There is a higher calling than the process you have to endure. The strength and style with which you handle this challenge will not go unnoticed by the next president.”

Noticed, perhaps, but that doesn’t mean a confirmation is in a nominee’s future.

“I think you just have to figure out how to retain your sanity and realize that this process is largely not about you,” said J. Rich Leonard, the Dean of Campbell University’s Norman Adrian Wiggins School of Law, who was nominated by President Bill Clinton to the 4th Circuit Court of Appeals. “Once you get over a threshold of accomplishment and ability that unequivocally demonstrates that you are suited for the appointment, then you are just caught in a political whirlwind that you have very little ability to influence.”

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Leonard was a U.S. Bankruptcy Judge in North Carolina at the time of his appointment, received a well-qualified rating from the American Bar Association and the support of his Democratic senator, John Edwards.

However, Leonard was blocked by his other home state senator, Jesse Helms, a Republican.

Leonard was then nominated to a seat on the U.S. District Court for the Eastern District of North Carolina, only to have his nomination to the lower-profile court blocked again by Helms. Leonard didn’t receive a hearing for either nomination.

Since 1946, about 77 percent of appeals court nominees have been confirmed compared to around 88 percent for Supreme Court nominees, said Sarah Binder, a professor at George Washington University and a senior fellow at the Brookings Institution who co-authored a 2009 book on the judicial selection process.

“The most important difference to highlight is the sheer public salience and intensity of media coverage that Supreme Court nominees face compared to lower court candidates,” Binder said.

Stuart Summit, a New York attorney who in 1987 was nominated by President Ronald Reagan to the 2nd Circuit Court of Appeals, said that he focused heavily on his year-long vetting process and didn’t remain as active in his law firm as he would have preferred. And though for Summit “people took for granted that there was going to be a confirmation,” ultimately that just didn’t happen.

Summit said the nominee should proceed in a way that does the least damage to him or her professionally, especially since “the odds of anyone being confirmed would be very low.”

“The process is much, much worse since the time I went through it, as bad as, or difficult as it was,” said Summit, a partner in the litigation department of Phillips Nizer LLP.

Summit’s home state senator, Republican Alphonse D’Amato, placed a hold on the nomination — a move that surprised the former New York City official.

''That a single senator, never mind one who introduced me to the committee, could simply stop the entire process only a few days before my confirmation without having to explain himself to anyone and without the courtesy of explaining himself to me, is simply beyond my understanding,” Summit told the New York Times in 1988. “It’s not in my makeup to be bitter. But no matter how exciting or thrilling my life now is, I will carry a sense of sadness with me. I had visualized myself dying in that job. I'll be grieving, probably all of my life.”

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The risk might not be worth the reward, said William Myers, who was nominated in 2003 by former President George W. Bush to serve of the 9th Circuit Court of Appeals. Democrats filibustered his nomination and he ultimately withdrew his name from consideration.

If the nominee is rejected by the Senate, he or she “would have no hope of resurrecting the nomination under a new President,” Myers said. “My advice would be to agree to be nominated and then hope the nomination doesn’t come up for a vote this Congress.”