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As you will see, a French version of Confirmation Tales—Histoires de confirmation—would not have any content.

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The French Fifth Republic has been in effect since 1958. The president serves a term of five years. (The French constitution was changed in 2000 to reduce the term from seven years to five.)

The French parliament consists of two houses, the Senate and the National Assembly. The Senate consists of 348 senators. They serve six-year terms, staggered into two classes. The National Assembly has 577 deputies, who serve five-year terms, except that the president has broad power to dissolve the Assembly and to call for new elections.

The president has unilateral authority to appoint the prime minister. But the National Assembly can force the prime minister to resign by passing a motion of censure.

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France has three high courts with distinct responsibilities: the Conseil d’État, the Cour de Cassation, and the Conseil Constitutionnel.

The Conseil d’État operates as France’s supreme court for administrative law. The Cour de Cassation operates as its supreme court for civil and criminal law. Each hears and decides appeals from lower courts.

The Conseil d’État has seven divisions and more than 200 judges. It typically operates in panels of three to seventeen members. It decides more than 10,000 cases a year.

The Cour de Cassation has six separate subject-matter divisions and some 200 judges. Its panels usually have three or five judges. It decides more than 25,000 cases a year.

Neither of these bodies can decide open constitutional questions. Since 2010, they refer serious unresolved constitutional questions (questions prioritaire de constitutionnalité, or QPCs) to the Conseil Constitutionnel for decision. When the Conseil Constitutionnel resolves a constitutional question, the Conseil d’État and the Cour de Cassation then apply its resolution in the cases before them.

Beyond its new role in deciding QPCs, the Conseil Constitutionnel maintains its traditional function of ruling on the constitutionality of legislation after it has been enacted by the parliament but before it has been signed into law by the president. The Conseil Constitutionnel generally can exercise this function only when a specified authority refers the legislation to it for review.

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The members of these three bodies are selected through different means, but none involves confirmation.

The Conseil Constitutionnel has nine members (in addition to former presidents, who seldom take part). They are appointed for nonrenewable nine-year terms. Three new members are appointed every three years. The appointment authority is divided among the president, the president of the Senate, and the president of the National Assembly. Each appoints one new member every three years.

The parliament has a sort of veto power over the French president’s appointments to the Conseil Constitutionnel. Specifically, it may block an appointment by a three-fifths majority vote of the combined membership of the constitutional-law committees of the Senate and the National Assembly. But if the committees do not act to block the appointment, it becomes effective. (By contrast, in the American system, Senate confirmation of a nomination is a prerequisite to an effective appointment.) The committees of the Senate and the National Assembly each also have a veto power (again by a three-fifths majority) over appointments made by their chamber presidents.

No appointment to the Conseil Constitutionnel has ever been blocked by these parliamentary committees. Just last February, the committees fell one vote short of blocking President Emmanuel Macron’s appointment of Richard Ferrand.

Members of the Conseil d’État are appointed by the Council of Ministers (which consists of the prime minister and other ministers). They do not have fixed terms. Members of the Conseil d’État have civil-service protections, are eligible for regular advancement based on seniority, and are subject to discipline or revocation via internal disciplinary mechanisms rather than political checks.

Judges on the Cour de Cassation are appointed by the president, but the president is constrained to act only on the recommendation of another body, the High Council of the Judiciary (Conseil Supérieur de la Magistrature). They have strong protections against removal or reassignment, but are subject to a mandatory retirement age (ranging from 67 to 70, depending on their positions).

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France remains very foreign.

(I have drawn on various sources for this post, including Claude AI and Wikipedia, but I have undertaken to verify what I have learned from those sources. I am of course responsible for any errors and will undertake to correct them.)

No Supreme Court case has ever loomed more ominously over an aspiring Supreme Court justice than Ricci v. DeStefano did over Sonia Sotomayor in 2009.

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Oral argument in Ricci took place just before Justice David Souter announced his retirement. The case weighed on White House lawyers during the weeks that Barack Obama took to select Sotomayor for Souter’s seat, and it hung over the first month of her nomination. When the Court did rule, a five-justice majority emphatically repudiated Sotomayor’s position, and even the four dissenters disagreed with the standard that she adopted and with her bottom-line judgment. Even more starkly, the careful and extensive consideration in the majority and dissenting opinions contrasted sharply with Sotomayor’s dismissive one-paragraph treatment of the legal claims.

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As we have seen, Sonia Sotomayor and her Second Circuit colleagues tried to bury the claims of twenty firefighters—nineteen whites and one Hispanic—that the City of New Haven had discriminated against them on racial grounds by discarding the results of promotional exams. It was bad enough for Sotomayor that Judge José Cabranes—her onetime mentor and fellow Puerto Rican—exposed the shenanigans in his extraordinary dissent from denial of rehearing en banc. It got even worse in January 2009 when the Supreme Court granted certiorari in the case.

The dispute that Sotomayor had tried to dispose of in an unpublished summary order with a single substantive paragraph would now be teed up for national attention. The Supreme Court would be addressing for the first time how to resolve the statutory clash between the City’s duty not to engage in intentional racial discrimination against the plaintiff firefighters and its duty to avoid employment practices that had a “disparate impact” on minority firefighters.

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Let’s clarify what was at stake in Ricci.

Title VII, as originally enacted in the Civil Rights Act of 1964, prohibits discrimination “because of” race (as well as “color, religion, sex, or national origin”)—i.e., intentional discrimination, also referred to as “disparate treatment.” In its unanimous ruling in Griggs v. Duke Power Co. in 1971, the Supreme Court held that this prohibition also applies to any practice that, although not intentionally discriminatory, “operates to exclude [minorities and] cannot be shown to be related to job performance.” A practice that unintentionally “operates to exclude” minorities beyond some (arbitrary) benchmark is said to have “disparate impact.”

In 1991, Congress effectively ratified Griggs by amending Title VII to spell out how the burden of proof in disparate-impact cases shall operate. In brief: The plaintiff establishes a prima facie case that an employment practice is unlawful by showing that it “causes a disparate impact on the basis of race.” The employer then has the burden to “demonstrate that the challenged practice is job related for the position in question and consistent with business necessity.” If the employer meets that burden, the plaintiff may still succeed by showing that the employer has refused to adopt an available alternative employment practice that has less of a disparate impact and that serves the employer’s legitimate needs.

Let’s make this concrete.

By tossing out the results of the promotional exams, the City of New Haven engaged in racial discrimination against (i.e., disparate treatment of) Frank Ricci, Benjamin Vargas, and their fellow plaintiffs. The City would not have tossed out the results if the racial composition of those qualifying for promotion had pleased it more. The City tried to justify its racial discrimination by claiming that it was acting to avoid disparate-impact liability to those minority firefighters who did less well on the exams.

The issue in Ricci was what standard the City had to meet in order to allow its disparate-impact concerns to trump its duty not to engage in intentional racial discrimination against the plaintiffs.

Consider the polar alternatives.

On one extreme—the position adopted by Sotomayor and her panel colleagues—the City should have broad rein to commit racial discrimination in order to avoid disparate-impact concerns. In the panel’s words, “because the Board, in refusing to validate the exams, was simply trying to fulfill its obligations under Title VII when confronted with test results that had a disproportionate racial impact, its actions were protected.” It sufficed that the potential disparate-impact plaintiffs could meet the minimal prima facie threshold of showing that the exams had a racially disparate impact. It did not matter whether such plaintiffs had any plausible prospect of actually succeeding on their disparate-impact claims. As Judge Cabranes correctly observed, under the panel’s approach, “municipal employers could reject the results of an employment examination whenever those results failed to yield a desired racial outcome — i.e., failed to satisfy a racial quota.”

On the opposite extreme, the City could be required to certify the exam results even when it was certain that doing so would make it liable for disparate-impact discrimination to minority firefighters. This would put the City in a Catch-22 and would seem to put Title VII at war with itself (though one resolution to the war would be to hold the disparate-impact provisions unconstitutional in such instances).

Between these extremes were various other alternatives.

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Oral argument in Ricci was set for April 22, 2009. As the argument date approached, attention to the case increased. As a savvy and aggressive aspirant for a Supreme Court nomination, Sotomayor knew that a vacancy was likely to arise that spring or summer. She also surely recognized that her escapades in Ricci made it more difficult for Barack Obama to nominate her.

Five days before the oral argument in Ricci, Sotomayor did some extraordinary public cheerleading for Obama. In a speech she delivered to the Black, Latino, Asian Pacific American Law Alumni Association, she proclaimed:

“The power of working together was, this past November, resoundingly proven.”

“The wide coalition of groups that joined forces to elect America’s first Afro-American President was awe inspiring in both the passion the members of the coalition exhibited in their efforts and the discipline they showed in the execution of their goals.”

“On November 4, we saw past our ethnic, religious and gender differences.”

“What is our challenge today: Our challenge as lawyers and court related professionals and staff, as citizens of the world is to keep the spirit of the common joy we shared on November 4 alive in our everyday existence.”

“It is the message of service that President Obama is trying to trumpet and it is a clarion call we are obligated to heed.”

If you don’t think that such comments from a sitting judge are problematic, imagine another judge making similar comments about Donald Trump’s election.

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Nine days after oral argument in Ricci, Justice David Souter announced his retirement. It took Obama 25 days to select Sotomayor.

As Joan Biskupic recounts in her biography of Sotomayor, White House lawyers were working through their concerns about her actions in the Ricci case. They knew that the Court would issue its decision before the confirmation hearing on Obama’s nominee took place, and they expected the Court to reverse Sotomayor. Indeed, the Administration’s own brief in the case, while broadly supportive of the City, took the position that Sotomayor and her colleagues were wrong to affirm the district court’s grant of summary judgment for the City. But White House lawyers figured that a reversal of Sotomayor could be blamed on conservative justices, and that, with 59 Democrats in the Senate, any controversy over Ricci would not imperil Sotomayor’s confirmation.

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The Court announced its decision in Ricci in the last announcement session of the term, on June 29—just two weeks before Sotomayor’s confirmation hearing would begin. The Court divided 5 to 4. Justice Anthony Kennedy’s opinion rejected the City’s position that “an employer’s good-faith belief that its actions are necessary to comply with Title VII’s disparate-impact provision should be enough to justify race-conscious conduct.” That “minimal standard,” he explained, would be satisfied “even where there is little if any evidence of disparate-impact discrimination” and “would amount to a de facto quota system.” Drawing on racial-discrimination cases arising under the Equal Protection Clause, the Court instead declared:

We hold that, under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action. [Emphasis added.]

In this case, “the record makes clear there is no support for the conclusion that [the City] had an objective, strong basis in evidence to find the tests inadequate.” While the “degree of adverse impact reflected in the results” sufficed to establish “a prima facie case of disparate-impact liability,” that was merely “a threshold showing of a significant statistical disparity, and nothing more.” That prima facie case “is far from a strong basis in evidence that the City would have been liable under Title VII had it certified the results.” The City “could be liable for disparate-impact discrimination only if the examinations were not job related and consistent with business necessity, or if there existed an equally valid, less-discriminatory alternative that served the City’s needs but that the City refused to adopt,” but, as Justice Kennedy went on to document in detail, there was “no strong basis in evidence to establish that the test was deficient in either of these respects.”

Justice Ruth Bader Ginsburg, joined by Souter and her two other liberal colleagues, dissented. Justice Ginsburg would have adopted the test whether the employer had “good cause” to act. Notably, she distinguished her standard from that applied by the Second Circuit panel and the district court, who in her view mistakenly “focused on [the City’s] intent.” She also explained that her preferred disposition would be to remand the case to the district court to apply her standard.

Sotomayor’s defenders tried to claim vindication from Ginsburg’s dissent. But beyond the fact that Ginsburg disagreed with Sotomayor’s standard and with her affirmance of summary judgment, Ginsburg’s dissent does not remotely suggest that Sotomayor’s effort to dispose of the case in an unpublished one-paragraph summary order was appropriate.

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Justice Ginsburg also shadow-boxed with Justice Samuel Alito over Obama’s empathy standard. Justice Ginsburg stated in her dissent that the “white firefighters who scored high on New Haven’s promotional exams understandably attract this Court’s sympathy”—as if the majority was indulging its empathy for them (and for the Hispanic plaintiff, Benjamin Vargas, whom Ginsburg somehow ignores). Alito responded:

Petitioners were denied promotions for which they qualified because of the race and ethnicity of the firefighters who achieved the highest scores on the City’s exam. The District Court threw out their case on summary judgment, even though that court all but conceded that a jury could find that the City’s asserted justification was pretextual. The Court of Appeals then summarily affirmed that decision.

The dissent grants that petitioners’ situation is “unfortunate” and that they “understandably attract this Court’s sympathy.” But “sympathy” is not what petitioners have a right to demand. What they have a right to demand is evenhanded enforcement of the law—of Title VII’s prohibition against discrimination based on race. And that is what, until today’s decision, has been denied them.

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As we shall see, Ricci would play a prominent role in Sotomayor’s confirmation hearing. Unable to defend her actual course of conduct, Sotomayor and the Democratic chairman of the Senate Judiciary Committee would resort to falsehoods.

But as Second Circuit judge (and Clinton appointee) José Cabranes would spell out in his extraordinary dissent from denial of rehearing en banc in June 2008, the panel dismally failed to give plaintiffs’ legal claims the serious attention that they deserved.

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In February 2008, Sotomayor and her panel colleagues Rosemary Pooler and Robert Sack issued an unpublished “summary order” rejecting the firefighters’ appeal of Arterton’s ruling. That order (available as Appendix A to Cabranes’s dissent) had only this single substantive paragraph:

We affirm, substantially for the reasons stated in the thorough, thoughtful, and well-reasoned opinion of the court below. In this case, the Civil Service Board found itself in the unfortunate position of having no good alternatives. We are not unsympathetic to the plaintiffs' expression of frustration. Mr. Ricci, for example, who is dyslexic, made intensive efforts that appear to have resulted in his scoring highly on one of the exams, only to have it invalidated. But it simply does not follow that he has a viable Title VII claim. To the contrary, because the Board, in refusing to validate the exams, was simply trying to fulfill its obligations under Title VII when confronted with test results that had a disproportionate racial impact, its actions were protected.

As Joan Biskupic recounts in her celebratory biography of Sonia Sotomayor, Breaking In, Judge Cabranes learned of the ruling by reading his local New Haven newspaper. He was surprised that the panel would deal with a case of such magnitude by a summary order, and the deeper he dug, the more aghast he was. He urged the panel to withdraw its order and issue a full opinion. But the panel refused. He then requested that the Second Circuit rehear the case en banc, but the full court rejected rehearing by a vote of 7 to 6. To compound the damage, the panel re-issued its order as a published ruling that (unlike its summary order) would qualify as binding Second Circuit precedent.

In his dissent from the denial of en banc rehearing, Cabranes vigorously objected to his colleagues’ burial of the firefighters’ claims:

This appeal raises important questions of first impression in our Circuit — and indeed, in the nation — regarding the application of the Fourteenth Amendment's Equal Protection Clause and Title VII's prohibition on discriminatory employment practices. At its core, this case presents a straightforward question: May a municipal employer disregard the results of a qualifying examination, which was carefully constructed to ensure race-neutrality, on the ground that the results of that examination yielded too many qualified applicants of one race and not enough of another? In a path-breaking opinion, which is nevertheless unpublished, the District Court answered this question in the affirmative, dismissing the case on summary judgment. A panel of this Court affirmed in a summary order containing a single substantive paragraph. Three days prior to the filing of this opinion, the panel withdrew its summary order and filed a per curiam opinion adopting in toto the reasoning of the District Court, thereby making the District Court's opinion the law of the Circuit.

Cabranes found Arterton’s reasoning implausible on its face:

Although it is not disputed that the decision to discard the examination results was based on racial considerations, the District Court determined as a matter of law that no racial discrimination had occurred “because [all of] the test results were discarded and nobody was promoted” and because “nothing in the record in this case suggests that the [defendants] acted because of discriminatory animus toward plaintiffs or other non-minority applicants for promotion.” [Citations omitted; cleaned up.]

The panel’s brisk dismissal of the firefighters’ claims, he explained, was very surprising:

On appeal, the parties submitted briefs of eighty-six pages each and a six-volume joint appendix of over 1,800 pages; plaintiffs' reply brief was thirty-two pages long. Two amici briefs were filed and oral argument, on December 10, 2007, lasted over an hour (an unusually long argument in the practice of our Circuit). More than two months after oral argument, on February 15, 2008, the panel affirmed the District Court's ruling in a summary order containing a single substantive paragraph.

Even worse was the decision of the panel, once it knew that it had escaped en banc review, to re-issue its order as a published and precedential opinion:

This per curiam opinion adopted in toto the reasoning of the District Court, without further elaboration or substantive comment, and thereby converted a lengthy, unpublished district court opinion, grappling with significant constitutional and statutory claims of first impression, into the law of this Circuit. It did so, moreover, in an opinion that lacks a clear statement of either the claims raised by the plaintiffs or the issues on appeal. Indeed, the opinion contains no reference whatsoever to the constitutional claims at the core of this case, and a casual reader of the opinion could be excused for wondering whether a learning disability played at least as much a role in this case as the alleged racial discrimination.

And then this killer understatement:

This perfunctory disposition rests uneasily with the weighty issues presented by this appeal.

Cabranes objected that under the panel’s approach, “municipal employers could reject the results of an employment examination whenever those results failed to yield a desired racial outcome — i.e., failed to satisfy a racial quota.”

Cabranes (and his five colleagues who joined his dissent) clearly believed that the Second Circuit panel members acted as they did in order to prevent en banc or Supreme Court review of the firefighters’ claims that they were victims of racial discrimination. Cabranes expressed his “hope that the Supreme Court will resolve the issues of great significance raised by this case” and his judgment that plaintiffs’ claims are “worthy of [Supreme Court] review.”

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The firefighters surely did not take any solace from the statement by Sotomayor and her colleagues that “We are not unsympathetic to the plaintiffs’ expression of frustration.” They were not undertaking to make an “expression of frustration.” They were advancing legal claims that they had been discriminated against on the basis of race. And they expected those legal claims to be addressed seriously.

For Sotomayor at least, it is also difficult to believe that she was “not unsympathetic” to the firefighters’ claims. Sotomayor was deeply distrustful of tests. As her biographer Biskupic writes, she “attributed differences in test scores between well-off whites and disadvantaged minorities to the cultural biases built into testing.” She declared herself “the perfect affirmative action baby”: “My test scores were not comparable to that [sic] of my colleagues at Princeton or Yale,” she acknowledged, so if there had been heavy reliance on those scores, “it would have been highly questionable whether I would have been accepted.”

Unlike some other beneficiaries of racial preferences, Sotomayor was deeply wedded to the system of advantages they conferred on her. Per Biskupic:

She had climbed the ladder of the law not just because she was smart and worked hard but because people in positions of power … sought to hire and promote blacks and Hispanics. Sotomayor understood that she was sometimes chosen over white candidates because of her ethnicity, but she objected to contentions that she was not as qualified or as competent because of the boosts she received.

In short, this “wise Latina” seemed to have learned from “the richness of her experiences” that claims by whites that they had been victimized by racial discrimination did not deserve to be taken seriously.

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I took a special interest in Judge Cabranes’s dissent (and highlighted it at the time) precisely because Sonia Sotomayor was one of the three members of the Second Circuit panel that buried the firefighters’ claims. The 2008 presidential election was some months away, and, as I observed, “Sotomayor is mentioned often as a likely Supreme Court pick in an Obama administration.”

Barack Obama would of course win that election. Eleven days before his inauguration in January 2009, the Supreme Court granted review of the Second Circuit’s ruling.

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The case likewise revealed the danger of Sotomayor’s belief that a “wise Latina” judge should draw on the “richness of her experiences” to “reach a better conclusion than a white male who hasn’t lived that life.” Sotomayor, a self-regarding “wise Latina,” drew on the richness of her own experiences to trample the rights of whites not to be victimized by racial discrimination.

As it happens, Second Circuit judge José Cabranes, Sotomayor’s onetime mentor and fellow Puerto Rican, would expose Sotomayor’s shenanigans in an extraordinary dissent from denial of rehearing en banc.

The saga of Ricci v. DeStefano, with its cast of lots of villains and some heroes, is far too large to be packed into a single post. I will tell the beginning of the story here.

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In 2003, the New Haven Fire Department administered examinations for promotion to the ranks of captain and lieutenant. Expert consultants hired by the City of New Haven carefully designed the examinations to be race-neutral. But the City was not happy with the results.

Forty-one applicants took the test to be captain. Of the twenty-two applicants who passed, 16 were white, 3 black, and 3 Hispanic. The percentage of white applicants who passed was markedly higher than the percentage of black and Hispanic applicants who did. Further, the top scorers, who would be eligible for immediate promotion to the existing vacancies, consisted of 7 whites and 2 Hispanics.

The results were roughly similar on the test to be lieutenant. Of the thirty-four who passed, 25 were white, 6 black, and 3 Hispanic. More than half of the white applicants passed; fewer than one-third of the black applicants did; and only one-fifth of the Hispanic applicants. The top scorers who would be eligible for immediate promotion were all white (though new vacancies would arise for the lieutenants who were promoted to captain, and three black applicants would have been eligible for those positions).

The test results triggered intense and racialized political controversy in New Haven. The City responded by declining to certify the test results, so no promotions were made.

Twenty firefighters—nineteen whites and one Hispanic—sued the City and City officials for discriminating against them on racial grounds. I’ll highlight here the two who ended up testifying at Sotomayor’s confirmation hearing.

Frank Ricci was the lead plaintiff. Ricci studied 8 to 13 hours per day to prepare for the lieutenant’s test and spent more than $1000 purchasing books and paying for them to be read on tape (because of his dyslexia). As he told the Senate Judiciary Committee:

I studied harder than I ever had before, reading, making flash cards, highlighting, reading again, all while listening to prepared tapes. I went before numerous panels to prepare for the oral assessment. I was a virtual absentee father and husband for months because of it.

Benjamin Vargas was the Hispanic plaintiff. Like Sotomayor, he was Puerto Rican and proud of his heritage. He and his family likewise sacrificed so that he could study hard to prepare for the captain’s test:

I am the proud father of three young sons. For them, I sought to better my life and so I spent 3 months in daily study preparing for an exam that was unquestionably job-related. My wife, a special education teacher, took time off from work to see me and our children through this process.

Vargas was badly beaten in 2004 in an attack that (as the New York Times reported) he believed was in retaliation for his joining the lawsuit. Other potential plaintiffs, including the black applicants who passed the tests and who would have been in line for promotions down the road if the tests had been certified, faced severe pressure not to sue.

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Federal district judge Janet Bond Arterton probably beats out Sonia Sotomayor as the worst judicial scoundrel in this saga. The firefighters moved for summary judgment on their claims that they had suffered racial discrimination in violation of the Equal Protection Clause and Title VII. The City defendants likewise moved for summary judgment in their favor. Among other things, they claimed that they refused to certify the test results in order to prevent a Title VII disparate-impact lawsuit by minority test-takers.

In a long—but, oddly, unpublished—opinion, Arterton granted summary judgment for the defendants. (Arterton’s opinion is Appendix B to Cabranes’s dissent.) I’m going to give Arterton’s opinion special attention because, as we shall see, Sotomayor and her colleagues on the Second Circuit panel on appeal, instead of presenting their own analysis of the legal issues, simply “affirm[ed], substantially for the reasons stated in the thorough, thoughtful, and well-reasoned opinion of the court below.”

On plaintiffs’ Title VII claim, Arterton acknowledged that “Plaintiffs’ evidence — and defendants’ own arguments — show that the City’s reasons for advocating non-certification were related to the racial distribution of the results.” She further concluded that a “jury could infer that the defendants were motivated by a concern that too many whites and not enough minorities would be promoted were the lists to be certified.” Arterton further conceded that defendants hadn’t proven that the very tests they arranged to provide were racially biased and that there were “shortcomings in [defendants’] evidence on existing, effective alternatives” to the tests.

You might reasonably think that all of this would mean that plaintiffs had presented enough evidence to go to the jury (i.e., to get beyond summary judgment) on their Title VII claim. But Arterton somehow determined that “Defendants’ motivation to avoid making promotions based on a test with a racially disparate impact, even in a political context, does not, as a matter of law, constitute discriminatory intent.” In other words, it simply didn’t matter that there was ample evidence that the City had refused to certify the test results because it didn’t like the racial distribution of the results. Such a motivation must be deemed not to have been racially discriminatory.

Arterton, I’ll note, found a Second Circuit ruling from 1999 to be “quite relevant and instructive.” But as Judge Cabranes would observe in distinguishing that ruling:

Neutral administration and scoring — even against the backdrop of race-conscious design of an employment examination — is one thing. But neutral administration and scoring that is followed by race-based treatment of examination results is surely something else entirely. [Boldface added.]

Even more amazingly, Arterton maintained that the “result” of the City’s decision not to certify the test results “was race-neutral”: “all the test results were discarded, no one was promoted, and firefighters of every race will have to participate in another selection process to be considered for promotion.” Never mind that the failure to certify disadvantaged those who would have been eligible for promotion.

If I’m reading her convoluted opinion correctly, Arterton concluded that the City’s “desir[e] to comply with the letter and spirit of Title VII”—and to avoid a Title VII lawsuit by test-takers who didn’t pass—provided a “legitimate non-discriminatory reason” for not certifying the test results. But as Judge Cabranes objects:

Under the District Court’s rationale, it appears that any race-based employment decision undertaken to avoid a threatened or perceived Title VII lawsuit is immune from scrutiny under Title VII. This appears to be so, moreover, regardless of whether the employer has made any efforts to verify that a valid basis exists for the putative Title VII suit.

Arterton similarly concluded that the firefighters’ Equal Protection claim failed because they supposedly could not show that City officials “acted out of an intentionally discriminatory purpose.” In her view, showing discriminatory “animus” was essential to showing intentional discrimination. Thus, she found it exculpatory rather than incriminating that City officials, in her words

acted based on the following concerns: that the test had a statistically adverse impact on African-American and Hispanic examinees; that promoting off of this list would undermine their goal of diversity in the Fire Department and would fail to develop managerial role models for aspiring firefighters; that it would subject the City to public criticism; and that it would likely subject the City to Title VII lawsuits from minority applicants that, for political reasons, the City did not want to defend.

In sum, while there are many adjectives that could be used to describe Arterton’s opinion, “thorough, thoughtful, and well-reasoned” would not be among them.

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Second Circuit judge Sonia Sotomayor offered that comment on the “difference” that “our gender and national origins may and will make … in our judging” in a 2001 lecture at Berkeley law school titled “A Latina Judge’s Voice.” Her remark would become national news within two weeks of Justice David Souter’s announcement of his retirement in 2009, and it would dog her throughout her confirmation process.

The intense controversy that Sotomayor’s “wise Latina” comment aroused stands in sharp contrast to the lack of attention that Ruth Bader Ginsburg’s incendiary positions received during her confirmation process sixteen years earlier. The difference arose from two dramatic and interrelated changes that had occurred in the meantime.

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Back in 1993, the Internet did not exist for most Americans. As a Judiciary Committee staffer for Senator Orrin Hatch, I received Ruth Bader Ginsburg’s Senate questionnaire response, with its voluminous attachments, only on paper. The American public did not have easy access to a list of her law-review articles and other writings, much less to the writings themselves. No one—myself included—was in a position to review much of her record beyond her judicial opinions in the extraordinary 86 days that Bill Clinton took to select her.

So during the three weeks between Ginsburg’s nomination and her hearing, it was a big surprise to me to run across a 212-page report that Ginsburg (and her co-author) wrote in 1974 that set forth these explosive propositions:

“Replacing ‘Mother’s Day’ and ‘Father’s Day’ with a ‘Parents’ Day’ should be considered, as an observance more consistent with a policy of minimizing traditional sex-based differences in parental roles.” [p. 133]

“Prostitution, as a consensual act between adults, is arguably within the zone of privacy protected by recent constitutional decisions.” [p. 72]

A statutory restriction on political rights of bigamists “is of questionable constitutionality since it appears to encroach impermissibly upon private relationships.” [pp. 190–191]

“Sex-segregated adult or juvenile institutions are obviously separate and in a variety of ways, unequal.... If the grand design of such institutions is to prepare inmates for return to the community as persons equipped to benefit from and contribute to civil society, then perpetuation of single-sex institutions should be rejected…. While the personal privacy principle permits maintenance of separate sleeping and bathing facilities, no other facilities, e.g., work, school, cafeteria, should be maintained for one sex only…. [G]ender should not be a relevant factor in determining institutional assignments [for prisoners].” [p. 75]

“The Boy Scouts and the Girl Scouts, while ostensibly providing ‘separate but equal’ benefits to both sexes, perpetuate stereotyped sex roles to the extent that they carry out congressionally-mandated purposes.” [p. 131]

The age of consent for statutory rape should be lowered from 16 to 12.* [pp. 69-71 and the specific recommendation regarding 18 U.S.C. § 2032 on page 76.]

Not a single reporter made any mention of this report during the entire confirmation process, and Ginsburg received only one mildly worded question about it during her hearing.

Communications technology had been revolutionized by 2009. Vastly more information was available to anyone looking for it, and any nugget could be shared quickly and broadly.

A diligent researcher at an obscure blog called Verum Serum discovered Sotomayor’s “wise Latina” remark and wrote about it on May 5, 2009, a mere four days after Souter’s announcement. New York Times reporter Charlie Savage ran across the Verum Serum blog post. On May 14, he published an article on Sotomayor’s 2001 speech and observed that she had “described her view of judging in terms that could provoke sharp questioning in a confirmation hearing.” He also posted the full speech, which had been published in the Berkeley La Raza Law Journal.

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Nearly all Republican senators back in 1993 embraced the “deference” model on Supreme Court nominations. Under that model, they would support a nominee selected by a Democratic president if that nominee met some suitable standard of intellect, character, and experience. The nominee’s judicial philosophy was at best a modest factor in their assessment.

It should seem very strange that Republican senators would abide by the deference model even after Democratic senators had clearly abandoned it, first in their defeat of Robert Bork’s nomination in 1987 and then in their opposition to Clarence Thomas’s nomination in 1991. (Even before Anita Hill surfaced, most Democratic senators were expected to vote against Thomas’s confirmation.)

The explanation I’ve offered is that Republican senators perceived that deference served their individual electoral interests. Their path to re-election was easier if a Supreme Court nomination didn’t become controversial. By invoking the deference approach, a senator acted to preempt any controversy: he sought to ensure that his own party wouldn’t punish him for his support for the Supreme Court nominee of an opposite-party president, and he aimed to win credit from voters of the opposite party and from independents.

Under this deference approach, Republican senators were looking for reasons to be able to vote yes on Ginsburg.

By 2009, many Republican senators would risk a serious primary challenge if they tried to hide behind the deference model. Both political parties had mobilized over judicial nominations and over competing judicial philosophies. Senate Democrats had escalated the battle over lower-court nominations by their unprecedented campaign of partisan filibusters. They had also vigorously contested George W. Bush’s nominations of Chief Justice John Roberts and Justice Samuel Alito.

So Republican senators were now looking for reasons to be able to vote against whomever Obama would nominate. And reasons grounded in judicial philosophy were especially attractive.

***

The National Journal’s Stuart Taylor published an early prominent critique of Sotomayor’s “wise Latina” remark. Taylor acknowledged that part of Sotomayor’s speech “was an unexceptionable description of the fact that no matter how judges try to be impartial, their decisions are shaped in part by their personal backgrounds and values, especially when the law is unclear.” But he powerfully condemned her “wise Latina” sentence:

So accustomed have we become to identity politics that it barely causes a ripple when a highly touted Supreme Court candidate, who sits on the federal Appeals Court in New York, has seriously suggested that Latina women like her make better judges than white males.

Indeed, unless Sotomayor believes that Latina women also make better judges than Latino men, and also better than African-American men and women, her basic proposition seems to be that white males (with some exceptions, she noted) are inferior to all other groups in the qualities that make for a good jurist.

Any prominent white male would be instantly and properly banished from polite society as a racist and a sexist for making an analogous claim of ethnic and gender superiority or inferiority.

Imagine the reaction if someone had unearthed in 2005 a speech in which then-Judge Samuel Alito had asserted, for example: “I would hope that a white male with the richness of his traditional American values would reach a better conclusion than a Latina woman who hasn’t lived that life” — and had proceeded to speak of “inherent physiological or cultural differences.”

Sotomayor’s supporters rushed to defend Sotomayor, or at least to try to explain away her comment. One White House ally contended that Sotomayor “misspoke.” Justice Ruth Bader Ginsburg offered the same feeble defense shortly before Sotomayor’s hearing began: “Think of how many times you’ve said something that you didn’t get out quite right, and you would edit your statement if you could.” But Sotomayor read from a prepared text, and she later published that text as a law-review article.

Others misstated what Sotomayor had said. Judiciary Committee chairman Patrick Leahy was especially brazen. At Sotomayor’s confirmation hearing, Leahy purported to ask her about her comment:

You said that, quote, you “would hope that a wise Latina woman with the richness of her experiences would reach wise decisions.”

Leahy doctored the quote to eliminate the very elements of Sotomayor’s comment that rendered it controversial.

Still others went on the racial offensive by ludicrously contending that critics of Sotomayor’s remark were disputing that a “wise Latina” could exist.

***

The phrase “wise Latina” appears 27 times in the transcript of Sotomayor’s confirmation hearing. Here’s what she had to say about her remark:

The context of the words that I spoke have created a misunderstanding … and to give everyone assurances, I want to state up front unequivocally and without doubt, I do not believe that any ethnic, racial, or gender group has an advantage in sound judging.

Sotomayor implausibly claimed that the “words that I used” were “agreeing with the sentiment that Justice Sandra Day O’Connor was attempting to convey …, which is that both men and women were equally capable of being wise and fair judges.” In fact, in her speech Sotomayor expressly contrasted her position with O’Connor’s. She noted that O’Connor had often been cited for the statement that “a wise old man and wise old woman will reach the same conclusion in deciding cases,” and she stated that “I am … not so sure that I agree with the statement.” That was her set-up for her “wise Latina” comment.

* I learned years later that it appears that Ginsburg made a drafting error and that she instead meant to make the somewhat more modest recommendation that the age of consent for statutory rape under federal law be reduced from 16 to 12 for offenders who were less than five years older than the target.

***
The two most obvious battles were over Sotomayor’s previous nominations as a federal district judge in 1991 and as a Second Circuit judge in 1997. Let’s start with the first.

It might seem curious that it was President George H.W. Bush, a Republican, who nominated Sotomayor to the Southern District of New York in 1991. But that curiosity is explained by the massive power that the Senate Judiciary Committee’s blue-slip privilege gave (and continues to give) home-state senators over district-court nominees.

New York’s two senators, Democrat Daniel Patrick Moynihan and Republican Al D’Amato, had established a power-sharing arrangement over district-court nominees in New York. The senator who was the same party as the president would dictate three of every four nominees, while the senator of the opposite party would get one of four picks. So it was that Moynihan selected the 37-year-old Sotomayor—and (as his aides would recount years later) he did so in the conviction that he was setting her on the path to the Supreme Court.

Lawyers in the Bush White House tried to resist: they saw Sotomayor as too left-wing, and they knew too that she was being groomed for higher office. But D’Amato’s own power rested on ensuring that Moynihan got his picks.

Sotomayor had her confirmation hearing in June 1992. As I’ve recounted, Senator Richard Shelby of Alabama, who was then a Democrat, was angry at his fellow Democrats over their mistreatment of Eleventh Circuit nominee Ed Carnes. He retaliated by holding Sotomayor’s nomination hostage: if Carnes didn’t receive a cloture vote on his nomination, Shelby wouldn’t free Sotomayor’s nomination. Democratic Senate majority leader George Mitchell promised Shelby that Carnes would get a cloture vote, and Sotomayor was confirmed without a roll-call vote in August 1992.

Sotomayor became the youngest federal judge in the Southern District of New York as well as the first Hispanic federal judge in New York. She also acquired the moderate camouflage of being a George H.W. Bush appointee whom the Senate had confirmed unanimously.

***

In June 1997, President Bill Clinton nominated Sotomayor, age 43, to the Second Circuit. Republicans controlled the Senate. Al D’Amato of New York could well have used his blue-slip privilege (which was then also robust on appellate nominees) to block any action on her nomination, and he could have used the threat of a negative blue slip to deter Clinton from nominating her in the first place. But D’Amato, facing a tough re-election contest and seeking the votes of Hispanic constituents, was instead a big backer of Sotomayor.

Sotomayor had her confirmation hearing in September 1997, and, over the objections of Senator Jon Kyl and Senator John Ashcroft, the Judiciary Committee reported her nomination to the Senate floor in March 1998. But in June, amid rumors that Justice John Paul Stevens might resign, her nomination became (in the words of the New York Times) “embroiled in the sometimes tortured judicial politics of the Senate”:

Some Republicans did not want to consider the nomination because, they said, putting her on the appeals court would enhance her prospects for elevation to the Supreme Court.

In October 1998, the Senate confirmed Sotomayor’s Second Circuit nomination by a vote of 67-29. In November, D’Amato lost his re-election bid to Chuck Schumer by more than ten points.

***
Other nomination battles helped keep Sotomayor’s path clear.

José Cabranes, who had won admiration for his work as a district judge in Connecticut since 1979, was prominently mentioned as a leading contender for the two Supreme Court vacancies that arose during Bill Clinton’s first two years as president, 1993 and 1994. On top of Cabranes’s strong qualifications and his relative youth (52), Clinton would have relished appointing the first Hispanic justice.

As Cabranes recounted to me, the White House invited him on short notice for an interview. But as Cabranes was preparing to head to the airport, a call came from the White House scrapping the interview. Cabranes soon heard that some feminist activists who were close to Hillary Clinton made clear that they would never find it acceptable for Bill Clinton to nominate Cabranes—who had in their eyes the dangerously macho combination of being male, Hispanic, and Catholic.

Another mischievous development complicated Cabranes’s candidacy in 1994. Yale law school dean Guido Calabresi informed colleagues that word was spreading among the liberal Hispanic groups supporting Cabranes’s candidacy that Cabranes’s daughter, as an aide to Vice President Dan Quayle, had written a memo assuring the George H.W. Bush White House that Cabranes was pro-life. The story was an utter fiction.

If Clinton had appointed Cabranes to the Supreme Court, it is unlikely that Obama would have been interested in nominating Sotomayor. The Hispanic first would already have been achieved. To be sure, Sotomayor would still have made history as the first female Hispanic justice. But in the diversity competition on the Left, there would have been much more interest in getting a liberal African American on the Court than a second Hispanic (indeed, a second Puerto Rican).

***
The biggest reason that Senate Democrats targeted George W. Bush’s nomination of Miguel Estrada to the D.C. Circuit in 2001 is that they soundly saw that nomination as a stepping stone to the Supreme Court. The Left wanted to prevent Estrada from becoming the first Hispanic justice. As an aide to Democratic senator Dick Durbin put it in a memo to Durbin, liberal interest groups

identified Miguel Estrada (D.C. Circuit) as especially dangerous, because he has a minimal paper trail, he is Latino, and the White House seems to be grooming him for a Supreme Court appointment. They want to hold Estrada off as long as possible.

Estrada had superb credentials. A partner in the appellate practice at a leading D.C. law firm, Estrada had worked for five years—nearly all of it in the Clinton administration—as a line lawyer in the Department of Justice’s Office of the Solicitor General (OSG), where he briefed and argued cases on behalf of the United States in the Supreme Court. He had also worked for two years as a federal prosecutor in the vaunted U.S. Attorney’s Office for the Southern District of New York. On top of his sterling academic achievements—graduate with high honors from Columbia University and Harvard Law School—Estrada had distinguished clerkships with Second Circuit judge (and Carter appointee) Amalya Kearse and Supreme Court justice Anthony Kennedy. Over the course of his career, Estrada had earned a reputation for dazzling brilliance.

In brief, he outshone Sotomayor. He was also seven years younger than she was.

Senate Democrats were so determined to defeat Estrada that they dramatically escalated the confirmation wars by deploying the filibuster against his nomination. their historic campaign of partisan filibusters. After seven unsuccessful cloture votes in 2003, Estrada withdrew his nomination.

If Bush had succeeded in appointing Estrada to the D.C. Circuit in 2003 (or earlier), there is a very good chance that he would have nominated him, at the age of 43, to one of the two Supreme Court vacancies that opened up in 2005. And if Bush had made history by appointing such an outstanding candidate as the first Hispanic justice, Sotomayor would have been much less attractive for Obama to select.

***
What William Faulkner wrote of “webs spun long before we were born” is true as well of confirmation battles from years ago: “The past is never dead. It’s not even past.”

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Tribe’s letter did not make waves during Sotomayor’s confirmation process for the simple reason that it did not become public knowledge until I received it and published it some 18 months later. But it provides interesting insight into the behind-the-scenes maneuvering that can take place as advocates of the competing contenders push their favorite.

***
Larry Tribe taught law at Harvard law school for more than 50 years, from 1968 until 2020. In his mid-30s, he wrote a magisterial treatise on constitutional law, American Constitutional Law. He argued frequently in the Supreme Court, and he was a close adviser to liberal senators on judicial confirmations and issues of constitutional law. His tenure included the six years (2003-2009) in which Elena Kagan was the law school’s dean, and he was surely deeply grateful to her for her controversial kid-gloves treatment of plagiarism charges against him.

Barack Obama studied constitutional law with Tribe (as, to much lesser renown, did I), and worked for him as a research assistant. When Obama was running for president in 2008, Tribe hailed him as “the most impressive student I’d ever worked with.” Tribe and Obama remained close during Obama’s remarkable political ascent.

Tribe’s relationship with Obama enabled him to be very candid about how Obama should fill David Souter’s vacancy. Tribe began by emphasizing that it is “very important that you view the vacancy created by Justice Souter's resignation as an opportunity to lay the groundwork for a series of appointments that will gradually move the Court in a pragmatically progressive direction”:

Neither Steve Breyer nor Ruth Ginsburg has much of a purchase on Tony Kennedy's mind. David Souter did, and it will take a similarly precise intellect, wielded by someone with a similarly deep appreciation of history and a similarly broad command of legal doctrine, to prevent Kennedy from drifting in a direction that is both formalistic and right-leaning on matters of equal protection and personal liberty.

He then turned directly to the presumptive frontrunner Sonia Sotomayor and stated that he was “concerned that [her] impact within the Court would be negative in these respects”:

Bluntly put, she’s not nearly as smart as she seems to think she is, and her reputation for being something of a bully could well make her liberal impulses backfire and simply add to the fire power of the Roberts/Alito/Scalia/Thomas wing of the Court. [Emphasis added.]

Tribe then discussed possible candidates for a future Stevens vacancy and pointedly didn’t mention Sotomayor even for that vacancy.

As for the Souter seat:

I can't think of anyone nearly as strong as Elena Kagan, whose combination of intellectual brilliance and political skill would make her a ten-strike, if you’ll forgive my reference to bowling. I’ve known and worked with her ever since she was my student and research assistant in the 1980s, have watched her become a scholar of the first rank and a star as a teacher, and have marveled at how skillfully she transformed a school that had long been considerably less than the sum of its parts into a vibrant and wonderful place for students to learn and for faculty to teach, write, and collaborate. Her techniques for mastering the substance of the many fields in which we have made important new faculty appointments during her tenure as dean and for gently but firmly persuading a bunch of prima donnas to see things her way in case after case—techniques she has deployed with a light touch and with an open enough mind to permit others to persuade her from time to time—are precisely the same techniques I can readily envision her employing not just with justices like Kennedy but even with a justice like Alito or, on admittedly rare occasions, with a justice like Scalia or Roberts.

Tribe praised another contender, Seventh Circuit judge Diane Wood, as “more powerful intellectually than Sonia Sotomayor or any of the others mentioned as plausible prospects at the moment with the sole exception of Kagan, who is even smarter.” But he observed that Wood, who was ten years older than Kagan, “would be likely to serve nearly a decade less than Elena and doesn’t appear to me to have the dynamic personality or the extraordinary diplomatic gifts for inspiring confidence and for moving others that have made Elena Kagan the best dean of any major law school in memory.”

***
When Obama ended up not following Tribe’s advice, Tribe deftly finessed. Two days after Obama announced his selection of Sotomayor, a New York Times article addressed concerns that she “has a blunt and even testy side” that (at least “to detractors”) “raises questions about her judicial temperament and willingness to listen.” In giving the White House’s answers to those questions, Tribe left the impression that he had supported her selection:

Laurence H. Tribe, a Harvard law professor who served as an adviser in the process that led to Judge Sotomayor’s selection for the Supreme Court, said the White House had found concerns about her temperament unfounded, concluding instead that her background and her concern with the consequences of court rulings would be a “healthy antidote” to more formalist legal theories advocated by the Supreme Court’s conservative wing.

“The president’s inquiries into the way she interacts with others,” Professor Tribe said, “convinced him that she would be a positive force in the chemistry of the Supreme Court.”

It would seem that Tribe’s main role “as an adviser in the process that led to Judge Sotomayor’s selection” was to send his letter to Obama vigorously opposing her.

Tribe would go on to sign his name to a letter from more than one thousand law professors that described Sotomayor as a “brilliant, careful, fair-minded jurist” who was “an exceptionally well-qualified nominee to the Supreme Court.”

***
When I published Tribe’s letter in October 2010, I received a lot of inquiries about how I had obtained it. The short answer is that someone anonymously emailed it to me—or, more precisely, emailed it to someone else who emailed it to me. How that anonymous person obtained the letter is another matter.

It’s a very safe bet that Tribe contemporaneously sent a copy of his letter to Kagan in order to win credit for it. He probably sent it to other supporters of Kagan for the same reason. My guess—and it’s no more than that—is that my anonymous source obtained the letter downstream from one of the original recipients.

***
After I published Tribe’s letter, Tribe claimed that “the reservations I expressed about Justice Sotomayor prior to her nomination were amply refuted by the closer study I was able to give her record before the president made his decision.”

If that were true, Tribe would surely have raced to retract his advice to Obama, right? There is no evidence that he ever did.

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***

The news that Justice Souter would retire leaked on April 30, 2009. The following day, May 1, Justice Souter sent his letter to President Obama.

Second Circuit judge Sonia Sotomayor, Seventh Circuit judge Diane Wood, and Solicitor General Elena Kagan quickly emerged as the top contenders for the nomination.

Sotomayor, then 54, had served on the Second Circuit since 1998. She had an inspiring life story and would be the first Hispanic justice ever (if you don’t count Benjamin Cardozo, a Sephardic Jew of Portuguese descent). She had been groomed for this possibility ever since Senator Daniel Patrick Moynihan of New York, as part of his power-sharing arrangement with his Republican colleague Al D’Amato, forced George H.W. Bush to appoint Sotomayor to a federal district court seat in 1992.

Wood, 58, was a liberal intellectual powerhouse on the Seventh Circuit, which she joined in 1995. She had clerked for Justice Harry Blackmun and before taking the bench had been a professor for over a dozen years at the University of Chicago law school, where Obama also taught.

Kagan, just turned 49, had been dean of Harvard law school before Obama selected her to be Solicitor General. She had been a law clerk for Justice Thurgood Marshall, taught at the University of Chicago law school, and worked in the Clinton White House.

***

When a nomination is up for grabs, the contenders will be tempted to advance their candidacies, especially if they can do so without leaving fingerprints. Their supporters, whether or not urged on by them, will also look for opportunities to do so. One way to promote a candidate ahead of her competitors is to tout her virtues. Another way is to highlight the shortcomings of her competitors.

On May 4, just three days after Souter’s announcement, Jeffrey Rosen, the influential Supreme Court commentator at the then-influential New Republic, published a piece that the New Republic titled “The Case Against Sotomayor.” The essence of Rosen’s article was that Democrats who had worked with her and who wanted Obama “to appoint a judicial star of the highest intellectual caliber” believed that Sotomayor fell far short of the mark:

They expressed questions about her temperament, her judicial craftsmanship, and most of all, her ability to provide an intellectual counterweight to the conservative justices, as well as a clear liberal alternative.

The most consistent concern was that Sotomayor, although an able lawyer, was “not that smart and kind of a bully on the bench,” as one former Second Circuit clerk for another judge put it. “She has an inflated opinion of herself, and is domineering during oral arguments, but her questions aren’t penetrating and don’t get to the heart of the issue.”

Rosen’s piece ignited a firestorm of anger and infighting on the Left over the weeks that followed. How dare anyone suggest that Sotomayor wasn’t of the “highest intellectual caliber”? Who was feeding this line to Rosen? Who was behind it? What was Rosen’s own hidden agenda?

Kagan ran into different—gentler but still potent—concerns from the Left. As the New York Times reported, “a number of liberals say they are suspicious that she may lean too far toward the middle.”

***

The weeks of delay also enabled conservative critics to expose the records of the contenders. That was the mission I assigned myself. My goal wasn’t to favor one candidate over another. I aimed, rather, to continue to make the case for conservative judicial principles and to illustrate how far afield the contenders strayed from those principles. I hoped to raise the political costs to Obama of whomever he ended up picking.

I won’t burden you with an account of my many posts during this limbo period. I’ll simply observe that I and others succeeded in highlighting and stigmatizing Sotomayor’s “wise Latina” declaration—“I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn’t lived that life”—in a way that I think framed the entire confirmation process.

***
The Obama White House had ample reason to anticipate that a Supreme Court justice would retire in 2009. John Paul Stevens was 89 years old, Ruth Bader Ginsburg was 76, and David Souter, though only 69, was known to hate living in Washington, D.C. and to relish returning to New Hampshire. But it wasn’t prepared to move quickly when Souter informed Obama of his retirement. Obama took a full 25 days before he announced that he would nominate Sotomayor.

Some time will be needed for review and deliberation. But there are always excuses for more dithering. A White House should recognize that delay has its downsides.

A year later, Obama would take 31 days to announce his nomination of Elena Kagan to John Paul Stevens’s seat. And most momentously, upon Justice Scalia’s death in February 2016, Obama would take 32 days to select Merrick Garland—enough time to enable Senate Republican opposition to filling the seat to set in concrete.

***

More broadly, there is an interesting partisan divide on how quickly presidents act: On the Democratic side, in addition to Obama: Bill Clinton took an excruciating 86 days to pick Ruth Bader Ginsburg and another 41 to pick Stephen Breyer. Joe Biden took 28 days to select Ketanji Brown Jackson. Across six nominations, that’s an average of 40 days.

On the Republican side:

• Reagan took 19 days to pick O’Connor.

• Thanks to Chief Justice Burger’s private advance notice of his intention to retire, Reagan was able to nominate William Rehnquist to Burger’s seat and Antonin Scalia’s to Rehnquist’s on the same day that Burger announced his retirement.

• Reagan took 5 days for Bork.

• George H.W. Bush took 3 days to announce Souter and 4 days to announce Clarence Thomas.

• George W. Bush announced his first nomination of John Roberts 18 days after Sandra Day O’Connor declared her retirement.

• And Donald Trump took 12 days to pick Brett Kavanaugh and 8 days to pick Amy Coney Barrett.

So even if you exclude the immediate Rehnquist and Scalia nominations, that’s an average of fewer than 10 days for a nomination by a Republican president. And the slowest nomination by a recent Republican president is faster than the fastest nomination by a recent Democratic president.

(I’ve excluded the selections of Douglas Ginsburg, Anthony Kennedy, Harriet Miers, Samuel Alito, and Neil Gorsuch on the ground that their situations aren’t comparable to first nominations. But I’m not slanting the data. If you want to include them: Reagan announced his intention to nominate Ginsburg 6 days after Bork’s nomination was defeated, and he announced the Kennedy nomination 4 days after Ginsburg withdrew. Bush 43 didn’t want to have two Supreme Court nominations pending at the same time, so he announced Miers 4 days after the Senate confirmed Roberts. He then announced Alito 4 days after Miers withdrew. Trump announced Gorsuch 11 days into his presidency. So these average fewer than 6 days.)

One possible, if partial, explanation for the disparity is that the vacancies during these Democratic presidencies all were announced or arose no later than the spring, so the president may not have felt any urgency in getting a justice in place for the Court’s next October term. By contrast, the vacancies during the Republican presidencies all arose after the Court had recessed for the summer, so a president couldn’t dillydally if he wanted his nominee to be hearing cases as soon as possible.

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* * *

In the eyes of conservatives, David Souter was the biggest mistake of George H.W. Bush’s presidency.

In July 1990, after enduring a stroke, Justice William J. Brennan Jr. made the surprising announcement that he was retiring after more than three decades on the Court. Brennan had been a dominant liberal force throughout his tenure. His retirement gave Bush the opportunity to flip Brennan’s seat and to strengthen the budding conservative cohort on the Court.

As Jan Crawford recounts in her excellent book Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court, Bush somehow ended up nominating Souter, whom he had just months before appointed to the U.S. Court of Appeals for the First Circuit. Souter had served for seven years on New Hampshire’s supreme court, but there was nothing in his record to mark him as a judicial conservative. The fact that his leading advocate was Warren Rudman, the liberal Republican senator from New Hampshire, should have set off alarm bells. Yet Bush’s recommenders (people I like and respect and whose gaffe should thus be a cautionary tale about how very good people can mess up) managed to persuade themselves that he was a stealth conservative. They pushed Souter past his chief contender, the then 41-year-old Fifth Circuit conservative stalwart Edith Jones.

Conservatives grimaced during Souter’s confirmation hearing. Souter testified that “I believe that the due process clause of the 14th amendment does recognize and does protect an unenumerated right of privacy.” He effused praise for Brennan: “Justice Brennan is going to be remembered as one of the most fearlessly principled guardians of the American Constitution that it has ever had and ever will have.” And he displayed a judicial approach that was difficult to distinguish from Brennan’s.

* * *

The White House could in theory have abandoned Souter’s nomination, even after the Senate confirmed it by a vote of 90 to 9 (with Teddy Kennedy and some other liberal Democrats voting against). But the short-term political imperative of every White House is to notch a victory, no matter how illusory that victory is.

* * *

Souter proved to be as bad as conservatives feared. In only his second term on the Court, he co-authored with Justice Sandra Day O’Connor and Justice Anthony Kennedy the joint opinion in Planned Parenthood v. Casey (1992) that refused to overturn the egregious ruling in Roe v. Wade (1973) and restore abortion policy to the democratic processes. The opinion instead espoused a stunningly grandiose vision of the Court’s role—as Justice Antonin Scalia put it in dissent, a “Nietzschean vision of us unelected, life-tenured judges leading a Volk who will be ‘tested by following,’ and whose very ‘belief in themselves’ is mystically bound up in their ‘understanding’ of a Court that ‘speak[s] before all others for their constitutional ideals.’”

At the announcement session, the three justices divvied up the opinion, and Souter presented its stare decisis analysis. It is difficult not to discern his pen in passages like these:

• “Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.”

• “To all those who will be so tested by following [the Court], the Court implicitly undertakes to remain steadfast, lest in the end a price be paid for nothing. The promise of constancy, once given, binds its maker for as long as the power to stand by the decision survives and the understanding of the issue has not changed so fundamentally as to render the commitment obsolete.”

• “Like the character of an individual, the legitimacy of the Court must be earned over time. So, indeed, must be the character of a Nation of people who aspire to live according to the rule of law. Their belief in themselves as such a people is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals. If the Court’s legitimacy should be undermined, then, so would the country be in its very ability to see itself through its constitutional ideals. The Court’s concern with legitimacy is not for the sake of the Court but for the sake of the Nation to which it is responsible.”

Souter moved decisively leftwards after Casey. After Ruth Bader Ginsburg and Stephen Breyer joined the Court in 1993 and 1994, respectively, he and Justice John Paul Stevens joined with them in forming a liberal bloc that vied for the decisive votes of either O’Connor or Kennedy.

* * *

Souter had a curious mix of qualities and quirks. He was deeply intelligent and learned but wrote turgid and byzantine prose. Legal journalist Jeffrey Rosen described him as “an unapologetically 18th-century character.” One of his law clerks marveled that he “does not use a computer or even a typewriter.” He was amusingly frugal: His standard lunch was a cup of yogurt and an apple; he would eat the entire apple, including its core. When a clerk gave him some Christmas cookies in a plastic sandwich bag, he returned the bag to her along with his note of thanks.

The bachelor Souter lived a very solitary life, but he was also friendly. The year that I clerked for Justice Scalia—the year of Casey—he would routinely greet me by name and make small talk. (His chambers was next to Scalia’s.) When the draft joint opinion in Casey was circulated around the Court, I was appalled. That very morning, we happened to pass in the corridor, and he greeted me with “Good morning, Ed. How are you?” I decided to seize the opportunity: “Well, Justice, since you ask ….” I (perhaps imprudently) proceeded to tell him why I thought that the draft opinion was an abomination, and he graciously listened to me for a few minutes.

Souter was admirably modest as a person. He had no interest in the D.C. power scene, and intensely disliked life in the city long before he was mugged in 2004. He returned to his native New Hampshire each summer as quickly as he could.

Scalia very much liked Souter and even set him up on a blind date. “I miss David,” he mused to me some years after Souter retired.

* * *

Souter developed a strong friendship with Justice Brennan, who in his retirement had his chambers on the second floor of the Court. Souter would visit Brennan often, and Brennan’s legendary charm might well have cemented Souter’s loyalty to his jurisprudence.

In his eulogy at Brennan’s funeral, Souter described himself as part of Brennan’s “huge family by adoption” and observed that Brennan always made him feel as if he were his “favorite child”: “I always felt great when I’d been with Bill.”

Eisenhower is said to have described his appointments of Brennan and of Chief Justice Earl Warren as his “two biggest mistakes.” Brennan in turn inspired the judicial outlook of George H.W. Bush’s biggest mistake.

* * *

David Souter satisfied the Rule of 80 for judicial retirement in May 2005. (He was 65, and, including his short stint on the First Circuit, he had racked up 15 years of judicial service.) He could have chosen then to return to his beloved New Hampshire to hike its mountains, read history and enjoy the quiet life. But had he done so, George W. Bush, the son of the president who appointed him, would have been able to appoint his successor.

Once Obama became president, Souter didn’t delay. On May 1, 2009, he officially announced his retirement. At age 69, he was 19 years younger than John Paul Stevens, and he had served 15 fewer terms on the Court than Stevens had. But now that he had confidence that his successor wouldn’t be a conservative, he raced ahead of Stevens for the exit door.

And so it is that the Supreme Court’s “Seat 3” has been filled by a liberal justice from Eisenhower’s appointment of Brennan in 1956 through today.

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The broad narrative of Obama’s two Supreme Court nominations is in many respects strikingly similar to that of Clinton’s two Supreme Court nominations sixteen years earlier. But there is one stark difference: Obama’s nominees encountered significant opposition from Republican senators.

Clinton’s nominees, Ruth Bader Ginsburg and Stephen Breyer, together received a grand total of 12 votes against their nominations (3 against Ginsburg, 9 against Breyer). Obama’s nominees, Sonia Sotomayor and Elena Kagan, had a total of 68 votes cast against them (31 against Sotomayor, 38 against Kagan).

Let’s look at the general reasons why.

* * *

There are many parallels between Bill Clinton and Barack Obama when it comes to Supreme Court nominations.

Both Clinton and Obama were lawyers who had a deep interest in the Supreme Court and who had indeed taught constitutional law—Clinton at the University of Arkansas, Obama at the University of Chicago. Each was married to a liberal lawyer whom he had met in law school—Clinton at Yale, Obama at Harvard. Each, when he became president, was young—Clinton was 46, Obama was 47—and each was regarded as charismatic and rhetorically adept.

Both Clinton and Obama had the gift of two Supreme Court vacancies in their first two springs in office. Both enjoyed a large Democratic majority in the Senate during those years: Democrats had 57 senators in 1993 and 1994, and they had 58 to 60 senators in 2009 and 2010 (including two independents who were part of the Democratic caucus). So both had a safe path to confirmation for their Supreme Court nominees.

Clinton and Obama voiced similar visions of what they were looking for in a Supreme Court justice. Clinton wanted “someone with a big heart,” someone “of genuine stature and largeness of ability and spirit.” Obama likewise asserted that what really matters in difficult cases is “what is in the justice’s heart,” “their broader vision of what America should be.”

Each was particularly insistent on the issue of abortion. When Clinton ran for president in 1992, he repeatedly promised that his Supreme Court nominees would be “strong supporters of Roe v. Wade.” In his campaign, Obama promised to “make preserving women’s rights under Roe v. Wade a priority as president.”

* * *

You would have to struggle very hard to make the case that Ruth Bader Ginsburg and Stephen Breyer deserved far more support from Republican senators than Sonia Sotomayor and Elena Kagan did. The reality is that the politics of the Supreme Court confirmation process changed dramatically in the 16 years between the two pairs of nominations.

At the outset of the Clinton administration, Republican senators continued to cling to the “deference” approach to Supreme Court nominations. Under the deference approach, senators deciding whether to support or oppose a nominee should ignore or demote considerations of judicial philosophy and focus primarily on whether the nominee meets some suitable standard of intellect, character, and experience. Senate Democrats had already abandoned that approach, first in their defeat of Robert Bork’s nomination in 1987 and then in their opposition to Clarence Thomas’s nomination in 1991. So, as I’ve spelled out, the best explanation of why Republican senators continued to invoke deference is that they believed it made their path to re-election easier: they were hoping that their conservative base wouldn’t punish them for supporting a liberal nominee, and they were winning credit with moderates.

The deference approach was unsustainable after Senate Democrats fought, and voted in large numbers against, George W. Bush’s nominations of John Roberts and Samuel Alito. The conservative base of the Republican party had mobilized in support of those nominations and against Democrats’ unprecedented campaign of partisan filibusters against Bush’s appellate nominees. Judicial confirmations had become a high-profile, hot-button political issue. Advances in communications technology meant that Republican senators could no longer treat a Supreme Court nomination as an inside game. Many Republican senators now had to worry that they would invite a primary challenge if they did not stand strong against liberal nominees.

* * *

It is doubtful that any Democratic president could have lowered the temperature on judicial confirmations. But Obama surely couldn’t. He had helped to escalate the confirmation wars during his short stint as a senator. In explaining his vote against John Roberts in 2005, he had articulated his notorious “empathy” standard for judging. He not only voted against Alito’s nomination; he even joined the effort to filibuster it. And he dragged the judicial-confirmation process for lower-court nominees to a new low when he became the first senator to embrace the Left’s scurrilous and racially charged attack on Fifth Circuit pick Leslie Southwick in 2007.

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Obama would win the 2008 election, but he would lose the broader rhetorical battle over the proper role of judges: His own two Supreme Court nominees would repudiate his empathy standard.

* * *

Barack Obama first articulated his empathy standard as a rookie senator in 2005, when he explained his decision to vote against the confirmation of John Roberts as chief justice. Roberts, Obama said, “does, in fact, deeply respect the basic precepts that go into deciding 95 percent of the cases that come before the Federal court -- adherence to precedence, a certain modesty in reading statutes and constitutional text, a respect for procedural regularity, and an impartiality in presiding over the adversarial system.” But “what matters on the Supreme Court is those 5 percent of cases that are truly difficult”:

In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.

In those 5 percent of hard cases, . . . the critical ingredient is supplied by what is in the judge’s heart.

On the presidential campaign trail in July 2007, Obama reiterated his empathy standard in his presentation to the Planned Parenthood Action Fund:

Ninety-five percent of the time. Justice Ginsburg, Justice Thomas, Justice Scalia they’re all gonna agree on the outcome.

But it’s those five percent of the cases that really count. And in those five percent of the cases, what you’ve got to look at is—what is in the justice’s heart. What’s their broader vision of what America should be. Justice Roberts said he saw himself just as an umpire but the issues that come before the Court are not sport, they’re life and death. And we need somebody who’s got the heart—the empathy—to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor or African-American or gay or disabled or old—and that’s the criteria by which I’ll be selecting my judges. Alright?

John McCain contested Obama’s vision of the judiciary in a speech in May 2008. “The proper role of the judiciary,” he observed, “has become one of the defining issues of this presidential election”:

My two prospective opponents [Obama and Hillary Clinton] and I have very different ideas about the nature and proper exercise of judicial power. We would nominate judges of a different kind, a different caliber, a different understanding of judicial authority and its limits. And the people of America — voters in both parties whose wishes and convictions are so often disregarded by unelected judges — are entitled to know what those differences are.

McCain faulted Obama and other Democrats for waging “tense confirmation battles [on] the suspicion that maybe, just maybe, a nominee for the Court will dare to be faithful to the clear intentions of the framers and to the actual meaning of the Constitution.”

The “vague words” of Obama’s empathy standard, McCain charged, “attempt to justify judicial activism—come to think of it, they sound like an activist judge wrote them”:

And whatever they mean exactly, somehow Senator Obama’s standards proved too lofty a standard for a nominee who was brilliant, fair-minded, and learned in the law, a nominee of clear rectitude who had proved more than the equal of any lawyer on the Judiciary Committee, and who today is respected by all as the Chief Justice of the United States.

McCain faulted Obama for voting against Samuel Alito (whose nomination he also attempted to filibuster) as well as John Roberts:

I have my own standards of judicial ability, experience, philosophy, and temperament. And Chief Justice Roberts and Justice Samuel Alito meet those standards in every respect. They would serve as the model for my own nominees if that responsibility falls to me….

My nominees will understand that there are clear limits to the scope of judicial power, and clear limits to the scope of federal power. They will be men and women of experience and wisdom, and the humility that comes with both. They will do their work with impartiality, honor, and humanity, with an alert conscience, immune to flattery and fashionable theory, and faithful in all things to the Constitution of the United States.

* * *

McCain also advocated the obsolete model of senatorial deference to the president on Supreme Court picks. He pointed out that he had voted for Bill Clinton’s nominations of Ruth Bader Ginsburg and Stephen Breyer for what he said was “the simple reason that the nominees were qualified, and it would have been petty, and partisan, and disingenuous to insist otherwise”:

Those nominees represented the considered judgment of the president of the United States. And under our Constitution, it is the president’s call to make.

In the Senate back then, we didn’t pretend that the nominees’ disagreements with us were a disqualification from office even though the disagreements were serious and obvious. It is part of the discipline of democracy to respect the roles and responsibilities of each branch of government, and, above all, to respect the verdicts of elections and judgment of the people.

* * *

Obama didn’t persuade McCain of the merits of his empathy standard. But perhaps he did persuade him that it is permissible—indeed, necessary—for senators to stand against Supreme Court nominees selected on the basis of that unsound standard: In 2009 and 2010, McCain would end up voting against Obama’s nominations of Sonia Sotomayor and Elena Kagan.

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That’s true of the Supreme Court and appellate appointments Bush made, as well as of those he failed to make. It’s especially true of how the politics of judicial-confirmation battles was transformed.

* * *

Let’s start with the Supreme Court.

As I’ve presented in detail, George W. Bush succeeded in appointing John Roberts and Samuel Alito to the two Supreme Court seats that became available in 2005. While Roberts’s replacement of William Rehnquist as chief justice did not significantly alter the ideological makeup of the Court, Alito’s replacement of Sandra Day O’Connor shifted that seat markedly to the right. But Anthony Kennedy would remain the presumptive justice in the middle until he retired in 2018, so Alito’s replacement of O’Connor did not prevent the conservative legal movement from suffering some significant losses in the interim.

No episode was more important in Bush’s second term than his failed nomination of his White House counsel (and former personal lawyer) Harriet Miers to the Supreme Court. The successful revolt of the conservative legal movement against that nomination not only led to Alito’s nomination. It also delivered the larger lessons that conservatives were no longer going to accept a Republican president’s “trust me” assurance on a Supreme Court nominee and that a Republican president would therefore be smart to look to the conservative legal movement for guidance in selecting a nominee.

Bush’s second term also set up Donald Trump’s first two Supreme Court selections a decade later. Bush appointed Neil Gorsuch and Brett Kavanaugh—as well as short-listers Ray Kethledge, Thomas Hardiman, and William Pryor (on top of his recess appointment in 2003)—to their appellate seats and thus gave them the opportunity to develop into outstanding candidates for elevation.

* * *

Bush appointed only 26 appellate judges in his second term, compared to 35 in his first term. The number is so low largely because Democrats held control of the Senate in 2007 and 2008: the Senate confirmed only 10 appellate judges in those two years, and 10 of Bush’s nominations died from inaction.

As I’ve spelled out, Bush’s failures on the D.C. Circuit and the Fourth Circuit were especially significant.

But Senate Republicans did manage to neutralize the filibuster weapon that Democrats had begun wielding against Bush’s appellate nominees in 2003. Although they did not succeed in abolishing the use of the filibuster against judicial nominees, their effort to do so yielded the Gang of 14 Agreement, which probably turned out to be much more beneficial than filibuster abolition would have been, including in smoothing Samuel Alito’s path to his Supreme Court confirmation.

As we shall see, the survival of the filibuster left it as a tool that Senate Republicans could use against Barack Obama’s nominees. When Senate Democrats acted in November 2013 to deprive Republican senators of the very weapon that they themselves had first deployed against Bush’s nominees, they clearly marked themselves as the aggressors in the confirmation wars. They also made it much easier for the Republican-controlled Senate to confirm Donald Trump’s three Supreme Court nominees and to create a conservative majority on the Court.

In case anyone was unclear on the elementary point, Senate Democrats’ refusal to act on many of Bush’s appellate nominees in his final two years—including seven who were nominated before the end of 2007—starkly reminded senators that a Senate majority could obstruct and defeat a nomination by simple inaction. That lesson would be repeated more prominently in 2016, when Obama nominated Merrick Garland to fill the vacancy that resulted from Antonin Scalia’s death.

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When George W. Bush became president in 2001, judges appointed by Republican presidents held a 5-to-4 edge on the D.C Circuit over judges appointed by Democratic presidents. There were three vacancies on the twelve-judge court. So the prospect was promising for Bush to establish an 8-judge conservative majority.

But that’s not at all how things turned out. I’ve presented some key parts of the problem before, but I think that it’s enlightening to look at the larger picture.

* * *

In May 2001, President Bush announced that he would nominate John Roberts and Miguel Estrada to two of the three vacancies on the D.C. Circuit. But his hopes for quick Senate confirmations were frustrated two weeks later when Senator Jim Jeffords of Vermont decided to leave the Republican party, thus handing control of the Senate to the Democrats. A fourth vacancy arose on the D.C. Circuit in September 2001 when Judge Stephen Williams took senior status, and the court became evenly divided (4 to 4) between appointees of Republican and Democratic presidents.

The Senate took no action on Roberts’s nomination in 2001 and 2002. Senate Democrats finally gave Estrada a confirmation hearing in late September 2002, when they were confident they would defeat his nomination.

Republicans regained control of the new Senate in 2003 by a 51-to-49 margin. Roberts had his confirmation hearing and was promptly confirmed by voice vote in May 2003. In sharp contrast, just two days before Roberts was confirmed, Senate Democrats initiated the filibuster as a weapon against Estrada and, after defeating seven cloture votes on his nomination, caused him to withdraw his candidacy in September.

In July 2003, Bush nominated Janice Rogers Brown and Brett Kavanaugh to the other two vacancies. Democrats filibustered Brown’s nomination, and Republicans didn’t push for a floor vote on Kavanaugh’s because they knew that it too would be filibustered.

In 2005, after winning a large majority in the Senate, Republicans unsuccessfully attempted to abolish the filibuster for judicial nominations. The Gang of 14 Agreement thwarted that attempt, but its seven Democratic signatories also committed to reserve the filibuster for exceptional circumstances. The Senate then confirmed Brown as well as Thomas Griffith, whom Bush nominated in 2004 to the seat that he had previously nominated Estrada to. And after a longer battle, it confirmed Kavanaugh in 2006.

Roberts left the D.C. Circuit in 2005 when Bush appointed him to the Supreme Court, and another vacancy arose when Harry Edwards (a Carter appointee) took senior status late in 2005. Kavanaugh’s appointment meant that the D.C. Circuit had seven appointees of Republican presidents and only three of Democratic presidents. So filling the Roberts and Edwards seats would give Republican appointees a commanding 9-to-3 margin.

But, as we have seen, Bush was unable to fill those two seats: Republican senators failed to act expeditiously to confirm Bush’s nomination of Peter Keisler before the November 2006 elections surprisingly put the Senate back in Democratic hands. And Republican senator Charles Grassley’s years-long campaign to decrease the size of the D.C. Circuit succeeded in eliminating the Edwards seat in 2008.

When Judge Raymond Randolph took senior status just days before Barack Obama’s election in November 2008, the Republican-appointee edge fell to 6 to 3, and Obama would inherit two vacancies to fill.

* * *

Despite starting his presidency with three vacancies on the D.C. Circuit, George W. Bush over the course of eight years increased the contingent of conservative-to-moderate judges on the D.C. Circuit by only one. Bush’s failure meant that control of the D.C. Circuit would come up for grabs during Barack Obama’s presidency. As we shall see, the battle for control would have momentous consequences not only for the D.C. Circuit but for the judicial-confirmation process more broadly.

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Shortly after the 2006 Senate elections gave Democrats control of the Senate in 2007, Fourth Circuit chief judge William Wilkins announced that he would take senior status on July 1, 2007. In September 2007, George W. Bush nominated Matthews to fill Wilkins’s Fourth Circuit seat. Senate Democrats never gave Matthews a confirmation hearing, and the Senate returned his nomination to the White House in January 2009, weeks before Barack Obama became president.

Matthews and I discuss his experience as a nominee, including the fate that his nomination (and many other Bush nominations) shared with Merrick Garland’s nomination to the Supreme Court in 2016.

Q. How did you decide that you were interested in the Fourth Circuit seat? How hopeful were you of getting confirmed?

I had never thought of being a judge. Most of my practice had been advisory and transactional, rather than along the litigation path that most judges had followed. Indeed, for the previous six years, I had served as managing partner of my firm, with few actual practice responsibilities. I was quite comfortable in the roles that I had, including as an occasional quiet advisor to various elected officials.

I had a decent relationship with both of South Carolina’s senators, Lindsey Graham and Jim DeMint. In fact, I was included in what Senator Graham referred to as his “Founders Group,” a group of early contributors to his first senatorial campaign who met with him two or three times a year to hear from him, and to give feedback, on various current policy issues. During those meetings, I became acquainted with his chief aide on Judiciary Committee matters, James Galyean. The Senator and James knew of my prior work in judicial selection for President Reagan.

Because Judge Wilkins was a South Carolinian, it was expected that a South Carolinian would be nominated to replace him. On the morning that his retirement hit the news, James called. I expected immediately that he was calling to ask for my recommendations of possible candidates and, perhaps, for assistance in vetting candidates. I was mistaken.

When I returned the call, James said that Senator Graham had asked him to put together a list of candidates to consider in formulating recommendations to the White House; and he asked if he could put me on the list that he would provide to the Senator. Although flattered, I thanked him but declined. I was about to send the first of three children off to college; I enjoyed my life and practice; and life as a judge had never held any particular appeal for me. Although some lawyers view judges (and some of them view themselves) as the next thing to gods, I always saw them simply as public servants fulfilling a vital but on most days not terribly interesting role.

James asked me at least to think it over for a while and discuss it with my wife. So, that evening, I told Caroline about the call and that I had declined. She then reminded me of a candidate for a Court of Appeals seat whom I had met while I was doing judicial selection and she and I had first begun dating. Lee Liberman (now Lee Otis) and I interviewed him together. He was active in local Republican politics, which many candidates were; and there was nothing about his résumé that was particularly distinguishing. On every question and on every follow-up, however, he showed a sophistication and depth that was breathtaking. As we walked away from the interview, Lee said in wide-eyed amazement, “He has no right to be that smart!” After some fits and starts, we successfully got him through the DOJ approval process, but he declined further consideration because it did not fit with other commitments he had just made.

I seldom discussed work outside of the office; but at the time I did complain to Caroline that it was hard enough to find good candidates, and that when one of them had the opportunity to serve, he really had an obligation to accept. So when I told her about my call from James Galyean, her only comment was, “You can’t be the person you complained about.”

The next day, I called James back and told him that it would be an honor to have my name on the list that he was preparing for the Senator. I knew that the likelihood of my name advancing much beyond that was remote and that I could allow my name on the list, clear my conscience, and have no real consequence.

A couple of days later, however, the White House called. The question was the same: would I be willing to be considered for the Wilkins vacancy on the Fourth Circuit. I laughed, explained about James’s call and Caroline’s comment, and said that I would be honored to be considered. I learned then, however, that the White House was calling not because of any recommendation from Senator Graham (who had not yet provided any recommendations), but because others who knew me and my judicial philosophy from my days in the Justice Department or from other connections had contacted the White House to recommend me.

Of course, I and everyone else involved knew that the recent election meant confirmations would be considerably more difficult. But the extent of that partisan obstructionism was not yet clear; and in any event it was two years until the next election. A delay of that length seemed unlikely.

As it happened, I was not nominated until 10 months later. By the time of the nomination, the senatorial roadblock to President Bush’s judicial and other nominations was becoming apparent. Combined with the fact that I had never been a shrinking violet about my judicial philosophy or other opinions, that situation did not portend a strong likelihood of success for my nomination.

Q. How did the selection process you went through differ from the process you were involved in during the Reagan administration?

The Administration’s selection process (or at least those parts of that I could see) was remarkably similar to that during my time at DOJ.

The significant difference was the place and style, but not the content, of the interviews. Rather than a series of one-on-one interviews at DOJ, I had two group interviews—one at DOJ and one at the White House. My interview at the Justice Department was done by Attorney General Alberto Gonzales and, if I recall correctly, Kyle Sampson, his chief of staff; Rachel Brand, head of the Office of Legal Policy; Elisebeth Collins, deputy in OLP; and perhaps others. The White House interview was conducted by White House counsel Harriet Miers, deputy counsel Bill Kelley, and associate counsel Jennifer Brosnahan.

The sorts of questions asked at both interviews were remarkably similar to those we asked when I was on the other side of the table.

Q. How did your experience in selecting judges prepare you for your own selection?

The major way in which my prior experience prepared me was that I went into the interviews with an understanding of, or at least a strong view about, what the interviewers needed to find out about me. If they liked what they learned about me, that was all well and good. If they did not like what they learned about me, that was fine also. I was not there to convince them that I was the right candidate for the nomination.

My job in the process was to make sure that they understood my approach to the role fully and correctly. On the basis of that, they would decide whether I was the right candidate. With that understanding and with an intervening 20 years’ worth of development of originalist/textualist concepts through Thomas and Scalia opinions and reams of scholarship, I think my interviews were more efficient and accurate in presenting to my interviewers just what my jurisprudential outlook was than were interviews that I had conducted way back when. Of course, my interviewers were aware of my earlier work in the Department and how I had conducted it; and so they also went into the interviews with a starting point well advanced from what had usually been my own starting point.

One of the minor ways in which my prior experience prepared me showed up at the end of the White House interview. White House counsel Miers excused her deputies from the room and began, very apologetically: “There are some questions that I have to ask. Please don’t think that we have heard anything negative about you or that there are any derogatory rumors. We’ve not heard any such thing. But we need to protect the President and to make sure that his nominees don’t become an embarrassment to the Administration.”

At that point, I interrupted and said, “Ms. Miers, please remember that I did this 20 years ago. I had to ask the same questions that you’re getting ready to ask now. I know what you’re going to ask and why you have to ask it. No need to be embarrassed.” With a sigh of relief, she said, “Oh, yeah. I guess that’s right. Okay . . .” and proceeded to ask if I had gambling or other heavy debts, drank heavily, cheated on my wife, used drugs, etc. (For the record, the answers all were and still are an honest “No.”)

Q. Describe how the confirmation process went.

In light of the Democratic majority’s determination to run out the clock on almost all appellate court nominations, the confirmation process can best be described—despite the best efforts of the White House, the Justice Department, and the Republican minority—as a charade.

White House legislative affairs and Senator Graham attempted the usual series of meetings with influential senators and staffers on both sides of the aisle. I had personal meetings with Senator Kennedy, Senator Durbin, Democratic Congressman James Clyburn of my home state, and Democratic Congressman John Spratt of my home state with whom I also shared a Yale Law School connection.

Senator Leahy, however, refused to meet with me. So, when I was walking through the Capitol one day with Harold Kim of White House Legislative Affairs on the way to one of our scheduled meetings and happened to see Senator Leahy waiting for an elevator, I dashed over, put out my hand, and said “Hello, Senator.” As he smiled and shook my hand, I continued, “I’m Steve Matthews, the President’s nominee to the Fourth Circuit from South Carolina.” The smile, in fact all expression, left his face; and he jumped into the elevator that had just arrived.

Senator Graham relayed to me on a couple of occasions that Senator Leahy had promised to schedule a hearing for me; however, that never happened. The Senate’s delay became so protracted and widespread that the White House scheduled a special, C-SPAN televised event one morning in February 2008 in the East Room. President Bush, flanked by me and others, but not nearly all of his pending judicial and other nominees, called out the Democratic majority in the Senate for shirking its responsibility to advise and consent by giving up-or-down votes on nominees duly submitted by the executive branch. In response, Senator Leahy relayed through Senator Graham that he had been “just about to” schedule hearings but would now refuse because the President had “politicized” the issue.

Q. How would the Steve Matthews of 1987 have assessed the judicial candidacy of the Steve Matthews of 2007?

Unsurprisingly, I would have approved. While working in judicial selection, I was looking for candidates who agreed with President Reagan on the judicial role. I had undertaken that work because I myself agreed with the President on that point (as I did on many others). In other words, by a sort of jurisprudential transitive property, I was looking for someone who agreed with me. As my judicial philosophy had not changed in the intervening years, I think the 50-plus-year-old me would have been an attractive candidate to the 30-year-old me.

Q. When Senate Republicans obstructed Merrick Garland’s nomination to the Supreme Court in 2016, liberal academics suddenly started advancing the wacky claim that the Constitution requires that the Senate hold an up-or-down vote on a Supreme Court nominee. The same Appointments Clause of course applies to lower-court nominees as to Supreme Court nominees. You must have been bemused by this episode.

Not so much “bemused,” really. I had long since stopped expecting any commitment to principle from those who deny that the Constitution embodies any. A better word may be “gratified.”

The same procedural ploy that kept me off of the Fourth Circuit kept Merrick Garland off of the Supreme Court. And I’ll take that tradeoff eight days a week.

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Over the past several decades, as the conservative legal movement has flourished and as communications technology has advanced, it has become much easier for conservative judge-pickers to identify quality candidates. Steve Matthews in the mid-1980s did not have those advantages. Serendipity—in the form of encounters at a symposium a decade earlier and at a friend’s wedding—played an important role in two of his favorite recommendations: David Sentelle and Paul Niemeyer.

Q. Are there any of your judicial selections that you’re especially proud of?

With the caveat that I made only recommendations and that the actual picks were made by the President on collaborative advice, there are several nominations in which I had a more determinative role that generated, in my estimation, really great jurists.

I’ll highlight two of them here. The first is David Sentelle, now a senior judge on the Court of Appeals for the D.C. Circuit.

Q. How did Judge Sentelle come to your attention?

In October 1985, I met with the then-acting Assistant Attorney General for Legal Policy regarding pending vacancies. He said that we had a vacancy on the D.C. Circuit, that the nominee could come from anywhere, and that our direction was to choose from among the district court judges picked by President Reagan. He handed me a list of all those district-court selections and asked, “So, who should it be?”

Having been a corporate finance lawyer, not a litigator, prior to joining the Administration, I recognized only a very, very few (and then only very vaguely) of the names on the list, who in any event had been judges for a few years at most. As I looked down the list, however, I came across the name of David Sentelle of North Carolina.

As an undergraduate at the University of South Carolina in the mid-1970s, I had been a professor’s guest at a symposium of the North Carolina Conservative Society and had there met then-State Court Judge David Sentelle. Over that weekend, I had come to realize that he was not only completely unassuming but also amazingly intelligent, incredibly erudite, and genuinely decent. I circled his name, handed it back, and said “Here’s the guy!”

I think my interlocutor was surprised that I actually knew anyone on the list. But he was familiar with Judge Sentelle, who, it turns out, was confirmed by the Senate to his district-court seat that very month, and he agreed that he would be a great choice.

As it happened, we instead moved an outstanding candidate, Stephen Williams, who had been initially selected for another Circuit into this D.C. Circuit seat.

Q. But another opportunity soon arose.

When Judge Scalia’s elevation to the Supreme Court created a D.C. Circuit vacancy in the fall of 1986, I recalled my previous recommendation of Judge Sentelle, and I enthusiastically encouraged his nomination. We had to go through the usual process of interview and background check, along with a somewhat convoluted selection process that concluded after the Republicans had lost the Senate in the 1986 midterm elections.

I knew that we had made the right choice during Judge Sentelle’s confirmation hearing, when one of the Senators (either Leahy or Simon, as I recall) tried to cow him into promising to resign from his Masonic lodge because it had no women members and, according to the Senator, no black members. Judge Sentelle politely reminded the Senator that the Masons are a “fraternal” organization and so would not have women members and that, although he (having not attended in quite some time) did not know whether his own lodge had any black members, there certainly were black Masons. He concluded, with a quiet courage that had been lacking when other nominees had been browbeaten by preening Senators over membership in some innocuous social organization, by stating (a paraphrase from memory): “Senator, the men in my family have been Masons for 200 years. If my membership causes you any concern about my suitability for this position, my resignation now should not allay those concerns. And no, Senator, I will not resign.”

Everything about the ensuing decades of Judge Sentelle’s service on the D.C. Circuit confirms my opinion that he is one of the truly great ones.

Q. Let’s turn to the other selection you’d like to highlight.

The other is Paul Niemeyer of the Fourth Circuit. He was elevated to that court by President George H.W. Bush, after my departure from D.C., from the Maryland district court bench to which President Reagan had appointed him with my participation.

Like Judge Sentelle, Judge Niemeyer has been one of the really excellent judges of the past several generations. In 1987, we had a vacancy on the district court in Maryland. With no Republican senator in Maryland, we turned to the congressional delegation from which we received only a single recommendation—a municipal judge who simply did not have a suitable background and experience.

Left to our own devices, I contacted a prominent businessman in Baltimore whom I had met at his nephew’s (my friend’s) wedding four years earlier and asked him to tell me who the really good civil litigators were in Baltimore. He gave me Paul Niemeyer’s name.

I called Paul, then a partner at Piper & Marbury, asked a bit about his practice (which was impressive), and then asked if he would be willing to be considered for a judicial appointment to the district court. His first response was that he really was not interested, had never thought of the judiciary as particularly appealing, and enjoyed what he was doing at his law firm. I suggested that he think about it for a while and that we talk again later, to which he agreed.

Before concluding the conversation, however, and in light of his somewhat unusual last name which was shared by a professor of political philosophy whom I had known for about ten years, I said, “By the way, I have to ask, are you familiar with another Niemeyer, Professor Gerhart Niemeyer?” With some obvious surprise, he responded “Well, yes. He’s my dad.”

That was the clincher. I knew that anyone who had grown up under Professor Niemeyer’s tutelage would be well-acquainted with the jurisprudential philosophy and habits of mind that we were looking for. And, indeed, he has been exactly that. After another call or two, he agreed to be considered, was duly appointed to the district bench, and then later to the Court of Appeals.

* * *

Judge Sentelle continues to serve on the D.C. Circuit. He became a senior judge on that court in 2013.

More than 35 years after George H.W. Bush elevated him to the Fourth Circuit, Judge Niemeyer remains in active status.

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Over the past year, my chronological narrative of judicial-confirmation battles moved into George W. Bush’s second term.

Highlights included:

• The Gang of 14 Agreement: How it derailed Republican efforts to abolish the filibuster on judicial nominations, how Senate Democrats quickly soured on it, and how we might never have had Justice Alito without it.

• The very different experiences of D.C. Circuit nominee Brett Kavanaugh and Tenth Circuit nominee Neil Gorsuch in the process that positioned them for their Supreme Court nominations a decade later.

• The American Bar Association’s thoroughly scandalous review of Fifth Circuit nominee Michael B. Wallace and former conservative legal icon Ted Olson’s surprising effort to bully me.

I also took occasional forays off the narrative path:

• My most-read post of the year was Teddy Roosevelt Quickly Regrets Appointing Justice Holmes.

• I explored how a federal appellate judgeship has recently become the preferred stepping stone to the Supreme Court, how there used to be lots of different paths, and explained the dramatic shift.

• I examined why state supreme court justices would rather be lower-court federal judges.

Have a Happy New Year! Please join me for another year of Confirmation Tales! And if you have friends or family members who you think will enjoy Confirmation Tales, please invite them to sign up.

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I continue my interview with Matthews.

Q. You completed a thorough review of then-Ninth Circuit judge Anthony Kennedy’s judicial record in 1985, more than a year before President Reagan made Kennedy his third pick to replace Justice Lewis Powell. Tell us how that came about.

On my first day in the Justice Department in June 1985, before I even had a desk, I was informed of a project to review possible candidates—all of whom were sitting Court of Appeals judges—for a Supreme Court nomination, should another vacancy occur during President Reagan’s term in office. [EW: Reagan had appointed Sandra Day O’Connor in 1981.] A small group inside the department was conducting the review; and each member of the group was assigned one of the potential nominees.

The task was to read every opinion (majority or dissent) written by or (if of any jurisprudential significance) joined by that judge; to write a synopsis of each such case summarizing and evaluating the judge’s work; and to then prepare a memorandum presenting an overarching analysis of that judge’s work. Non-judicial writings, speeches, and available interviews were also included. The judges did not know that they were being evaluated.

After the project was described to me, I was told that I was being assigned Judge Anthony Kennedy of the Ninth Circuit, a name that I had never before heard. After nearly a year, I had finished studying several hundred opinions, had prepared synopses ranging from one page to five or more pages on well over 100 of them, and had prepared the comprehensive memorandum. [EW: The memo is in the public domain.]

I learned during the process that Ed Meese had played an important role in Judge Kennedy’s getting on the Ninth Circuit in the first place. President Ford had nominated Judge Kennedy to the Ninth Circuit on the recommendation of Ronald Reagan who, in turn, had relied on the recommendation of Ed Meese. That knowledge made it uncomfortable for me to offer a negative opinion on Judge Kennedy as a Supreme Court candidate; but my analysis of his writings made that negative opinion necessary. By that point, I knew the Attorney General well enough to know that he expected a completely honest, professional opinion.

Q. What concerned you about Judge Kennedy’s record?

As I noted in my memo, Judge Kennedy’s record was mixed; and I was of the view that one should not take chances on a Supreme Court nominee. But my main point of concern was that Judge Kennedy was simply too comfortable with the notion that a judge could ad lib constitutional rights with no textual or historical support—the “living Constitutionalism” of Justice Brennan. This showed up most clearly in his 1980 decision upholding restrictions on service by homosexuals in the Navy on the narrow basis that the usual constitutional rules do not apply in the armed services, with a strong and clear suggestion that he would have decided differently had the issue arisen in society at large. The contrast with a 1984 decision on the same issue by Judge Bork on the D.C. Circuit (also one of the candidates being reviewed) was stark. (Both decisions were before the Court’s 1986 ruling in Bowers v. Hardwick.)

I concluded the comprehensive memorandum with the analysis of that case and the statement that “This [Judge Kennedy’s] easy acceptance of privacy rights as something guaranteed by the Constitution is really very distressing.” There were other aspects of Judge Kennedy’s jurisprudence as reflected in his written record that were also troubling (for example, voting rights in a water district, and avoidance of statutes of limitations for a sympathetic plaintiff).

Brad Reynolds, who was chairing the review project, told me later that, upon reading the analysis, Judge Kennedy fell from near the top of his list to the bottom. As it happened, however, that fact did not become relevant for a while. The top two on the list were, by a wide margin, Judge Bork and Judge Scalia.

Q. How did Kennedy end up getting nominated?

When Chief Justice Burger retired in 1986, President Reagan selected Judge Scalia (for actuarial reasons, so I understand), with Rehnquist moving up to Chief; and in 1987, he selected Judge Bork for Justice Powell’s vacancy. When Judge Bork’s nomination was murdered by a cabal of clowns, cretins, and degenerates in the Senate, there was an effort by some in the White House to move immediately to Judge Kennedy, on the grounds that the Democratic Senate majority had signaled that they found him unobjectionable. However, personnel in the Department (I think in large measure because of my analysis) were still game for a fight, and successfully recommended to the President that he select DOJ alumnus Judge Douglas Ginsburg. But when that selection fell through, confirmability without controversy became the order of the day, at the political level. That, combined with the fact that some involved in the process believed my gloomy prognosis for a Kennedy appointment to be mistaken, made his nomination unavoidable.

Q. Any second thoughts on your opposition to Kennedy?

Twenty years later, a few weeks before I was nominated for the Fourth Circuit vacancy, Jan Crawford’s book Supreme Conflict came out and recounted portions of my memorandum. I had described my role and my view in that process to the folks working on the nomination in the White House and in DOJ very early in the process, so it was not news to them. But there was certainly the prospect that it might complicate confirmation, which was already uncertain at best, given the 2006 election results.

In one of my last visits with my father, then recently hospitalized in what was his (fortunately very brief) final illness, I told him about the book. He put everything in perspective with a three-word question and a three-word statement. He asked, “Were you right?”; and when, with knowledge of Justice Kennedy’s first 20 years on the Court, I responded “100 percent!”, he said “Nothing else matters.”

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When I contacted Matthews to learn about his nomination by George W. Bush to a Fourth Circuit seat in 2007, I discovered that he had a wealth of interesting recollections from his Reagan days. Matthews generously agreed to talk with me about his experience, including his prescient assessment of Anthony Kennedy’s fitness for the Supreme Court.

Q. How did you get involved in judicial selection for the Reagan administration?

I was hired by Attorney General Edwin Meese shortly after his move to the Department of Justice. I was in private practice with a Wall Street firm in its D.C. office. Although I had been a great admirer and supporter of President Reagan since 1968 and was in full accord with what he and Ed Meese hoped to accomplish in the jurisprudential arena, I really had no desire or intention to go into the government. My good friend Ken Cribb, who was Ed’s most trusted lieutenant, asked me to meet with the new Attorney General to see if there might be a role in his Department of Justice that would allow me to serve where I thought I could make a valuable contribution.

When I met with Ed, after a fairly lengthy conversation, he said that he would like for me to come in to serve as Deputy Associate Attorney General to Brad Reynolds, who had been nominated to be the Associate Attorney General, and that a significant part of the responsibility of that role would be in the judicial selection process. Because I knew that that process would be one of the most significant parts of President Reagan’s legacy and because of my very longstanding concerns with errors in that process during prior administrations and with the jurisprudential attitude that a great many previous Presidents’ nominees brought to the bench, I found myself – somewhat to my surprise – immediately saying yes; and I joined the Department in June 1985.

Of course, as it turned out, Brad Reynolds was not confirmed; so for my first eight months or so, I was housed in the Civil Division and in the Civil Rights Division. During that time, I handled a number of responsibilities that would have been in my planned portfolio, including in the judicial-selection process—and, most importantly in that regard, on the internal committee looking at potential nominees for the next Supreme Court vacancy.

When Stephen Markman, longtime aide to Senator Orrin Hatch, was confirmed as Assistant Attorney General in the Office of Legal Policy in the early spring of 1986, I became Deputy Assistant Attorney General in that Office, where my nearly-but-not-quite sole responsibility was overseeing the judicial selection process.

Q. Describe the judicial-selection process for lower-court judges when you were running it.

The process was essentially the same throughout the two terms of the Reagan presidency, although the key personnel involved centered around Mr. Meese in both terms and, consequently, were more active in the White House during the first term and in the Department of Justice during the second term.

During my involvement, the process operated in this fashion. When a vacancy occurred in a district court seat, we would ask the Republican senator or senators from the State (or the most senior locally relevant Republican member of Congress if there was no Senator) for 3 to 5 recommendations. Our commitment was that, unless all recommended prospects were for whatever reason unacceptable, we would confine our consideration to those recommendations. For circuit court vacancies, we would receive and consider recommendations from those Republican senators or representatives but would not limit ourselves to only those recommendations; we would, instead, undertake our own search for possible candidates.

Of course, the willingness of senators to accept those terms of engagement varied broadly, especially with regard to district court appointments. Some would serve as an honest broker and provide 3 to 5 bona fide recommendations; some would insist that it was their prerogative to choose the nominee and insisted that they would provide only one recommendation; and some would publicly provide a large number of names, and get credit from each of them for having done so, but would then quietly explain that only one was a real recommendation and that that one must be chosen. Senatorial insistence on a single candidate for a circuit court vacancy was rare, but it did happen.

Q. How did Attorney General Meese decide among the competing candidates?

Once a person was in the mix, we invited that person to come to Washington on his/her own dime, for interviews with various officials and staffers in the Department. We did not explain in advance what the nature or scope of the interviews would be. Some told us (or otherwise demonstrated) that they had heard from other candidates or from media reports what to expect, but their expectations were usually wrong. One fairly young candidate confided that he was expecting (or dreading) a sort of bar exam, with questions about the finer points of the Federal Rules and a whole host of federal statutes that were not familiar to his small-town practice.

In fact, our questions were intended to determine (in addition to basic quality of legal education and acumen) whether the person’s view of the judicial role was in line with that of President Reagan, that is, fidelity to the Constitution and laws as written and ratified or enacted. In phrases not yet then current, this was “original public meaning” and “textualism.” We presented hypothetical scenarios, posing legal issues arising from such a hypothetical, and asked how the candidate would go about analyzing those questions or resolving apparent conflicts in legal principles, with each response then eliciting from us follow-up questions or counter-points.

As I described then what I was looking for in those interviews, it had three elements: an understanding of what the sources of law are (and what they are not) and the hierarchy of those sources; the intelligence to read and understand those legal sources; and the intellectual humility to keep one’s own preferences out of the consideration and to declare what the actual law actually requires. On that last point, there was a cautionary “tell” for which I kept an eye out. If I could see that someone really wanted to be a judge (as opposed to someone who was willing to serve in that role, if asked), my sensitivity would elevate on that question of ability to divorce one’s personal preferences from legal mandates.

The interviewers always included me and Steve Markman, and usually included others who were deputies to the assistant attorneys general or special assistants to the Attorney General. We did the interviews one-on-one or occasionally two-on-one.

In tandem with the interviews, we also conducted informal background checks by telephone calls to people in the State who were viewed favorably by the Administration and to State bar association officials. In addition, where there was a publicly available written record (rare for district court candidates; more frequent for circuit court candidates who were already on a district court or who were coming from an academic background), we would examine that as well.

Once we completed the interviews of a candidate, we would combine the interviewers’ observations, noting where there were concerns or disparities in interviewers’ reactions to the candidate and/or where the candidate had done especially well. Once we had interviewed all of the candidates for several vacancies, we would meet with Attorney General Meese. We would present to the Attorney General, for each vacancy, the pluses and minuses of each candidate and, for each vacancy, a ranking of the candidates. Following discussion, Ed would select a candidate to recommend to the White House for each vacancy.

Q. What happened after Attorney General recommended a candidate to the White House?

Consideration at the White House was undertaken by a committee chaired by White House counsel that met about once a month. Attending from the Department were the Attorney General, Ken Cribb, Steve Markman, and me. From the White House, the participants were, in addition to the White House counsel and his deputy, the director of personnel, the legislative affairs director, and the state affairs director (and perhaps others – my memory of who was around the table is not complete). At that meeting in the Roosevelt Room, for each vacancy, the Attorney General would present a single name, the one that he had selected. Other candidates who had not been selected were usually not discussed unless some Senator was making a hard push for a non-selected candidate. In the great majority of cases, the Attorney General’s recommendation was accepted by the White House committee.

At that point, the name was given to the FBI for a full background check and to the ABA for rating by its Standing Committee on the Judiciary. (Even then, we had some problems with leftist bias by the ABA Committee.)

Unless the FBI review disclosed a problem (which I recall happening only twice, although there may have been others), the President made the nomination. From that point, most nominations proceeded to a hearing and vote, subject to the usual Senatorial wrangling, vote-trading, etc.

Q. The conservative legal movement was in its infancy in the 1980s. I would think that there were very few candidates well versed in what we now regard as conservative judicial principles. How did you find good judges?

You’re quite right. Few lawyers, and for that matter few sitting judges, at that time thought seriously about the jurisprudential concerns that are now a staple of legal discourse. None of them had had the opportunity, as law students or as practitioners, to have studied opinions of Justice Thomas or Justice Scalia or Justice Alito or Judge Bork. Nor had they had the opportunity to have read the scholarship of Richard Epstein or John Harrison or Steve Calabresi. So, few people (including the candidates themselves!) knew what a candidate’s considered opinion on jurisprudential points would be. Beyond that, as noted earlier, for district court seats (other than the District of Columbia and a few states where we had a free hand), we were pretty much confined to the list of recommendations from the Senators or congressional delegation. Our job then was to choose the best from that list. Among the recommendations presented to us, we used the interview tools described above. To locate possible alternatives, we made us of our extensive combined network of contacts throughout the country and scoured the available writings of academics and lower court judges. Although I’m sure that we sometimes missed great prospects, we nevertheless did find a surprising number of them.

Q. During the first part of your time in DOJ, Republicans controlled the Senate. But Democrats won control in the 1986 elections. How did that change of control affect your selection of judicial candidates?

For the most part, it didn’t. Regardless of which party controlled the Senate, we were looking for the best candidate who understood and agreed with the President’s view of the role of the federal judiciary. After the 1986 mid-terms, there were (so I understand) some more accommodationist personnel in the White House who preferred to avoid fights and preserve political capital (although for what purpose, I never understood – all political capital would evaporate on January 20, 1989). That mindset never really had an impact on the lower courts; and where it appeared at the Supreme Court level (with some in the White House preferring Judge Kennedy), the President himself chose first Judge Bork and then Judge Douglas Ginsburg before finally agreeing to a more-easily-confirmable Judge Kennedy.

***

In my next interview segment, Matthews will discuss his review of Anthony Kennedy’s candidacy for the Supreme Court as well as his role in the selection of two judges he is particularly proud of: D.C. Circuit judge David Sentelle and Fourth Circuit judge Paul Niemeyer.

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Instead, when Bush left office eight years later, the Fourth Circuit still had only six conservative (or moderate conservative) judges, and its contingent of liberal judges in lifetime seats had actually increased from four to five. Plus, there were still four vacancies on the court that Bush handed off to Barack Obama, who was thus able to transform the Fourth Circuit into a liberal bastion.

Let’s take a closer look at Bush’s dismal failure.

***

The Fourth Circuit covers the five states of Maryland, North Carolina, South Carolina, Virginia, and West Virginia. Let’s start by looking at its composition in January 2001.

For ease of reference, I will refer to some particular seats by number. (The number of a seat corresponds to the order in which it was originally filled—e.g., Seat 1 was filled in 1891—and has no other significance). I will also refer to seats by state, but I emphasize again that federal law does not actually designate seats within a circuit by state.

In January 2001, the Fourth Circuit had six judges who had been appointed by Republican presidents:

• Emory Widener, age 77, appointed by Richard Nixon in 1972 (Seat 4, Virginia)

• Harvie Wilkinson, age 56, appointed by Ronald Reagan in 1984

• William Wilkins, age 58, appointed by Ronald Reagan in 1986 (Seat 11, South Carolina)

• Paul Niemeyer, age 59, appointed by George H.W. Bush in 1990

• Michael Luttig, age 46, appointed by George H.W. Bush in 1991 (Seat 13, Virginia)

• Karen Williams, age 49, appointed by George H.W. Bush in 1992

It had four judges whom Bill Clinton had appointed to lifetime seats over the previous eight years: Blane Michael, Diana Motz, William Traxler, and Robert King.

It had Clinton recess appointee Roger Gregory (Seat 15, Virginia).

And it had four vacancies: Seat 7 (North Carolina), Seat 8 (Maryland), Seat 10 (North Carolina), and Seat 12 (South Carolina).

***

In his first term, Bush succeeded in filling two of the four vacancies: Dennis Shedd to Seat 12 in 2002 and Allyson Duncan to Seat 10 in 2003.

Let’s look, in rough chronological order, at the fate of six other seats: Roger Gregory’s seat, the two other vacancies that Bush inherited, and the three other seats that would be vacated by Republican appointees.

Seat 15 (Virginia): Hindsight confirms what was clear to astute observers at the time: Bush’s appointment of Roger Gregory to a lifetime seat in 2001—a decision pressed on him by rookie Virginia senator George Allen—was a terrible blunder. I’ve addressed that decision in detail and won’t repeat it here. For present purposes, it suffices to note that Bush gave up the opportunity to appoint a conservative judge to Seat 15 and instead entrenched a very liberal judge in that seat.

Seat 7 (North Carolina): Republican senator Jesse Helms obstructed Bill Clinton from filling this North Carolina seat when it became open in 1994, and Democratic senator John Edwards returned the favor when Bush nominated Helms protégé Terrence Boyle to the seat in 2001. Even after Republican senator Richard Burr took Edwards’s seat in 2005, Senate Republicans did not use their large majority in 2005 and 2006 to confirm Boyle’s nomination. (See my fuller account.) When Bush withdrew Boyle’s nomination after Democrats won control of the Senate in the 2006 elections, he nominated Robert Conrad to the seat, but Democrats prevented any action on Conrad’s nomination. So this seat remained vacant through Bush’s presidency.

Seat 8 (Maryland): As I’ve spelled out, Maryland’s Democratic senators used their blue-slip power to deter Bush from nominating anyone to this seat in 2001 and 2002. When Bush tried to shift the seat to Virginia, their filibuster threat defeated his effort. Bush failed to find a nominee who would win their support, and this seat also remained vacant through his presidency.

Seat 4 (Virginia): In 2001, Emory Widener announced his intention to take senior status upon the confirmation of his successor. It wasn’t until September 2003 that Bush nominated Department of Defense general counsel William J. Haynes II to the seat. The Judiciary Committee, with only three Democrats voting no, favorably reported Haynes’s nomination to the full Senate in March 2004. But the eruption of controversy over horrific abuses at the Abu Ghraib prison in Iraq gave Democrats an excuse to stall his confirmation. As Benjamin Wittes explained in a New Republic essay, Haynes acted “very admirably” in opposing the military’s use of highly coercive interrogation techniques, including waterboarding, but somehow ended up getting “smeared” as a supporter of torture. When Bush renominated Haynes in 2005, he ended up getting blocked, bizarrely, by newly elected Republican senator Lindsey Graham. Why Graham would indulge the smearing of Haynes is a mystery.

Haynes withdrew his nomination after the 2006 elections gave Democrats control of the new Senate. Democrats refused to act on Bush’s subsequent nominees to the seat. Widener died in September 2007.

Seat 13 (Virginia): After being passed over for the two Supreme Court vacancies that opened up in 2005, Michael Luttig, then 51, resigned his judgeship in May 2006 to become general counsel of Boeing (an opportunity that, according to his resignation letter, arose “through sheer serendipity”). Two years later, Bush succeeded in appointing Virginia supreme court justice Steven Agee to the seat.

Agee’s replacement of Luttig meant that Seat 13 continued to be held by a conservative judge, so it might well be that Luttig’s resignation had no negative effect on the ideological composition of the court. But as I explained in my post on Robert Conrad’s nomination, Senate Patrick Leahy, the Democratic chairman of the Judiciary Committee, undercut a deal to give Conrad a hearing by substituting Agee in Conrad’s place. So it’s possible that if Luttig hadn’t resigned, Conrad would have been confirmed.

Seat 11 (South Carolina): William Wilkins announced at year-end 2006 that he would step down as chief judge and take senior status in July 2007. (He became eligible to take senior status under the Rule of 80 in March 2007.) The Democrat-controlled Senate refused to take any action on Bush’s nomination of Steven Matthews.

In sum: Bush gave Clinton’s very liberal recess appointee Roger Gregory a lifetime appointment, and he failed to fill four other vacancies, including three that existed for all or nearly all of his presidency.

***

What were the causes of Bush’s failures? I’ll cite three:

1. George Allen. In effectively forcing Bush to give Roger Gregory a lifetime appointment, Allen was trying to advance his own political interests at the expense of the quality of the Fourth Circuit.

When Allen ran for re-election in 2006, whatever goodwill he had built on issues of race was destroyed in his infamous “Macaca moment.” (See fuller discussion at end of linked post.) The media elevated Allen’s “Macaca moment” into the defining event of the campaign. Allen lost re-election by a very tiny margin, 0.39%.

Virginia had two Republican senators for the first six years of Bush’s presidency. If Allen hadn’t pushed Gregory on Bush, there would have been plenty of room to get a quality nominee confirmed in the four years from 2003 through 2006.

2. Republicans’ loss of the Senate in the 2006 elections. Republicans went into Election Day 2006 with a 55-seat majority. Although a reduction in that majority was expected, virtually no one anticipated a Democratic sweep of all of the close races.

If Republicans had retained control of the Senate in 2007 and 2008, Conrad, Haynes, and Matthews would probably have been confirmed. If Republicans had planned for the contingency of losing the Senate, they might well have confirmed Haynes and Boyle in 2006.

3. The Senate Judiciary Committee’s blue-slip policy. The committee’s blue-slip policy, embraced by chairmen of both parties, gave home-state senators a veto (or, in the case of Orrin Hatch as chairman, a near veto) over nominations to appellate seats in their states. Senators of both parties benefited from that policy, and there was no prospect that any chairman would abandon it. It would take another decade or so of escalation in the judicial-confirmation wars before the blue slip on appellate nominations would be demoted.

Without meaning to suggest that President Bush could have done anything to make the blue-slip disappear, I think it’s nonetheless instructive to observe how great an obstacle it was. Consider what would likely have happened if the robust blue-slip policy did not exist:

• George Allen would have had no leverage to insist that Bush nominate Roger Gregory.

• Terrence Boyle would probably have been confirmed after Republicans took control of the Senate in 2003.

• Bush would have nominated someone (probably Peter Keisler) for Seat 8 in Maryland in 2001, and the Senate would have confirmed that nominee by 2004.

***

As we shall see, Barack Obama in his first two years would fill all four Fourth Circuit vacancies that he inherited, and in 2011 he would also replace Karen Williams. He would thus establish a dominant (ten-to-five) liberal majority on the once-conservative court.

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We’ve already addressed Senator George Allen’s terrible blunder in pushing Bush to give a lifetime appointment to Bill Clinton’s recess appointee Roger L. Gregory. We’ve also seen how Bush, through his unsuccessful nominations of Terrence Boyle and Robert Conrad, was unable to fill a Fourth Circuit vacancy in North Carolina that he inherited.

Let’s take a look at what happened to the putative Maryland seat that opened up when Fourth Circuit judge Francis Murnaghan died in August 2000.

***

In October 2000—less than a month before the presidential election—Bill Clinton nominated federal district judge Andre Davis to fill Murnaghan’s seat. Two decades earlier, Davis had been a law clerk for Murnaghan. With the Senate in Republican control, there was no prospect of any action on the nomination. Unlike with Gregory, Clinton did not recess-appoint Davis to the seat. Gregory was in private practice, so he had little to risk from a recess appointment: if it expired, he could simply return to private practice. But Davis would vacate his federal district judgeship if he accepted a recess appointment to the Fourth Circuit.

Bush hoped to nominate the outstanding lawyer Peter Keisler to Murnaghan’s seat and to include him in his initial slate of appellate nominees. But Maryland’s two Democratic senators, Paul Sarbanes and Barbara Mikulski, objected to Keisler, purportedly on the ground that the longtime resident of a Maryland suburb of Washington, D.C. did not have sufficient ties to the state. They advanced the same objection to Brett Kavanaugh, even though Kavanaugh was raised in Bethesda (suburban D.C.) and his mother was a Maryland state judge. Their refusal to return positive blue slips doomed both candidacies.

After two years of obstinacy from Sarbanes and Mikulski, the White House decided to shift the seat to Virginia, whose two Republican senators would be more accommodating. But Sarbanes and Mikulski threatened to filibuster Bush’s nomination of Claude Allen in 2003. Republicans on the Judiciary Committee, knowing that Democrats had the votes to sustain a filibuster, weren’t eager to establish the principle that the committee would allow a president to evade home-state senators’ blue-slip privilege by shifting the nomination to another state. Why undermine their own blue-slip privilege in exchange for nothing? The committee declined to vote on Allen’s nomination, and it died at the end of 2004.

Through all of 2005 and 2006, when Republicans enjoyed a 55-seat majority in the Senate, the White House couldn’t work out a nominee acceptable to Sarbanes and Mikulski.

In November 2007, after Democrats had regained control of the Senate—with Ben Cardin replacing Sarbanes—Bush nominated Rod Rosenstein. In doing so, Bush put to the test the Maryland senators’ supposed litmus test of strong ties to Maryland.

In 2005, Sarbanes and Mikulski had given their blue-slip approval to Bush’s nomination of Rosenstein as U.S. Attorney for Maryland. Rosenstein had won ardent praise from Maryland Democrats for his performance as U.S. Attorney. As the Baltimore Sun reported, Maryland attorney general Douglas Gansler lauded Rosenstein for

being the first Maryland U.S. attorney to gain a racketeering indictment against a gang and for restoring order to the U.S. attorneyʼs office after the tumultuous tenure of Thomas M. DiBiagio. “He came into an office that was in complete disarray,” said Gansler… “And he really gained the confidence of the legal community and restored the morale of the office in a relatively quick amount of time.”

Earlier in his career, Rosenstein had worked years as a line prosecutor in the U.S. Attorney’s office in Maryland. And his role as counsel to senior Department of Justice officials in the Clinton administration gave him bipartisan credentials that you might think would appeal to Maryland’s senators.

But no.

“Rod Rosenstein is doing a good job as the U.S. attorney in Maryland, and thatʼs where we need him,” Mikulski said, in explaining why she didn’t want Bush to nominate him. After he was nominated, the Washington Post reported that Mikulski and Cardin objected that Rosenstein “lacks the lengthy history of legal experience in Maryland and strong Maryland ties that they considered the ‘primary criteria’ for the judgeship.”

***

What was really going on, of course, is that Maryland’s Democratic senators wanted a liberal to occupy the Murnaghan seat. Having bested Bush for the six years of his presidency, including four years in which Republicans held the Senate, they weren’t going to fold as the end drew near and Democrats were in charge. What’s more, they recognized that the Fourth Circuit was on the verge of having a liberal majority.

Rosenstein never received a hearing.

***

In 2009, Barack Obama nominated Clinton’s former pick Andre Davis to Murnaghan’s seat, and the Senate promptly confirmed him.

Davis’s ties to Maryland were indisputably strong: he grew up in Baltimore, attended law school at the University of Maryland, worked in its U.S. Attorney’s office, taught at the University of Maryland, was a state-court judge, and had served as a federal district judge in Maryland since 1995.

But when Davis took senior status in 2014, Obama’s nomination of Pamela Harris to replace him exposed the phoniness of the Maryland senators’ stance on Rosenstein. Like Kavanaugh, Harris grew up in Bethesda before going to college and law school at Yale and working in Main Justice and for D.C. law firms. At Harris’s confirmation hearing, all that Mikulski could muster on Harris was that she “work[ed] with Maryland’s public defender on an amicus curiae brief involving Montgomery County Schools.” So much for “the lengthy history of legal experience in Maryland and strong Maryland ties” that Mikulski and Cardin supposedly “considered the ‘primary criteria’ for the judgeship.”

What really mattered to Mikulski and Cardin was that Harris was liberal—indeed, very liberal—and Rosenstein wasn’t.