AROUND D.C., CONFIRMATIONS

Tuesday, March 17, 2009 10:02 AM

Panelists Offer Advice, Predictions On Judicial Nominations

By AMY HARDER

A panel discussion hosted by the Woodrow Wilson Center on Monday offered the Obama administration warnings and advice for navigating the forthcoming judicial nominations that Senate Judiciary Chairman Patrick Leahy, D-Vt., is hoping the president will send to his committee before lawmakers' spring recess early next month.

James Flug, who worked for Sen. Edward Kennedy, D-Mass., as counsel and later as chief counsel, has experienced the intricacies of judicial nominations from the staff level. Flug advises President Obama to "lay out what his principles of selection are in a way that's clear and simple and honest and that reflects these values and the values he wants to see an an appellate judge. There's a real opportunity for leadership," said Flug.

He cautioned, however, that Senate Republicans' recent threat to filibuster the president's choices before they've even been laid out suggests that the GOP is "not in good faith." Sarah Binder, George Washington professor and Brookings Institute senior fellow, reiterated that caution, saying the unified control Democrats enjoy in both houses of Congress is "not magic or a silver bullet" when it comes to confirming judicial nominees. She predicted that many judges appointed during Jimmy Carter's administration, who did not want to retire while a Republican was in office, could likely choose to now.

Obama should find a way to inform his millions of followers, mostly amassed during the campaign, about judicial nominations, Flug said. Emphasizing that people don't understand the process and issues as well as they should, Flug said that if Obama "can give a very clear and candid and understandable version of what he's looking for in a judge, the public will become a part of the process."

The panelists often referenced the divergent confirmation processes of Chief Justice John Roberts and Justice Samuel Alito, both nominated by George W. Bush in his second term. While the former was rather clean and simple, the panelists agreed, the latter created unwelcome controversy. A nomination of this level isn't as imminent as those at the lower-level federal courts, but it is expected that at least one -- possibly up to three -- Supreme Court justices will retire during Obama's term. Considering how technology has evolved, especially in terms of e-mail and electronic document retrieval, Flug said confirmation could become a much more time-consuming process that delves deeply into the nominee's past life. Sometimes too much so, he added.

New York Times Washington correspondent David Kirkpatrick, who has covered Supreme Court and executive branch nominations, said that the structure of a judicial confirmation by way of the Senate creates an "atmosphere of a treasure hunt," almost as if lawmakers are searching for a piece of information about nominees before the news media gets to it. "It is a bizarre experience to be a part of it," Kirkpatrick said.