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Biden, Palin May Loom Large in Judge Picks
Legal Times
September 12, 2008
Dick Cheney had Supreme Court nominees over to his house for interviews. Al Gore kept weekly tabs on President Bill Clinton's nominations to the federal bench.
When it comes to picking judges, vice presidents can matter. So the question is: How much influence would Sen. Joseph Biden or Alaska Gov. Sarah Palin bring to bear on the next administration's judicial nominations?
Biden's credentials as a former chairman of the Senate Judiciary Committee seem to give him more clout in this area, while Palin -- seen as the conservative weight on the Republican ticket -- is thought to be an assurance that Sen. John McCain will make good on his promise to nominate more judges in the mold of Chief Justice John Roberts Jr. and Justice Samuel Alito Jr.
In addition to the routine federal court packing, the next administration could see as many as three vacancies on the high court.
In Biden, Sen. Barack Obama selected a running mate who, as chairman of the Senate Judiciary Committee from 1987 to 1995, officiated at the confirmation hearings of five Supreme Court justices, one would-be justice, and hundreds of lower court judges.
Palin brings less of a record in this regard, but she already has had more impact on the Alaska judiciary than her predecessor. Since taking office in December 2006, Palin has seated more than a dozen judges, including a state Supreme Court justice and a state court of appeals judge, the first appellate appointments in the state in more than a decade.
INTERVIEWING WITH PALIN
When Roberts was vetted for the Supreme Court in the spring of 2005, his first full-fledged interview took place at Cheney's residence, according to Jan Crawford Greenburg's 2007 book, "Supreme Conflict". Around the same time, Alito was invited to Cheney's house for his first meeting with the team of White House advisers and Justice Department officials that would steer him through the confirmation process.
Gore, through his top aides, took measure of President Clinton's judicial nominations in weekly meetings with White House and Justice Department officials. Gore was a strong voice, former Clinton officials say, in pushing the nominations of Justices Ruth Bader Ginsburg and Stephen Breyer.
To varying degrees, vice presidents have helped shape the federal judiciary. This was not lost on conservatives. When Sen. Joseph Lieberman, I-Conn., surfaced as McCain's potential running mate, the backlash was profound.
The Committee for Justice, a conservative group specializing in judicial nominations, suggested Lieberman could deflect the criticism if he pledged he would not play a role in picking judicial nominees for the president or run for president himself. He might also allay fears by promising to caucus with the Republicans in the Senate for the remainder of the year, Curt Levey, the group's executive director, wrote in an Aug. 28 news release.
McCain's choice of Palin, a social conservative, shut down criticism from Levey and others. "McCain is a moderate, and she's more of a movement conservative," Levey says. "If she has any effect on his judicial picks, I think it'll be a positive one."
Judicial nominations in Alaska follow the Missouri Plan, a hybrid of elections and appointments. A group of three lawyers, three nonlawyers and the chief justice of the state Supreme Court vets, interviews and votes on candidates for judgeships. For each vacancy, the group -- called the Alaska Judicial Council -- submits at least two nominees to the governor, who makes the final decision on whom to appoint.
Larry Cohn, the council's executive director, says Palin has appointed 13 judges since taking office in 2006.
Last year, she appointed Daniel Winfree to the Alaska Supreme Court. At the time, he was executive director and general counsel of the Great Fairbanks Community Hospital Foundation. Winfree, a former president of the Alaska Bar Association and the Western States Bar Conference, headed a civil litigation firm for several years before joining the foundation.
According to his state judicial application, Winfree tried for a spot on the U.S. District Court in Alaska in 2001 but finished fifth in a state bar poll. Only the top three names were forwarded to the White House.
"He was a very good choice for the Supreme Court," says Andy Harrington, one of four nominees Palin interviewed for the Supreme Court post. "I told the governor, ‘I know you make a lot of tough decisions, but this isn't one of them. You can't go wrong with any of us.'?"
Last month, Palin elevated a state Superior Court judge, Joel Bolger, to the three-judge Alaska Court of Appeals, which exclusively handles criminal appeals. Bolger was a state district court judge before his appointment to the Superior Court.
Palin has also seeded the lower courts with lawyers from all walks -- public defenders, prosecutors, criminal defense attorneys and civil trial attorneys.
Harrington, executive director of Alaska Legal Services Corp., interviewed with Palin in November 2007, days after the state Supreme Court issued a ruling striking down a law that required girls less than 17 years old and younger to get permission from their parents before receiving an abortion. Palin, who opposes abortion except in cases where the mother's life is threatened, called the ruling "outrageous." Harrington anticipated a question about the ruling. But Palin never asked about the case or any other, Harrington says.
"I was pleasantly surprised that the topic did not come up," he says. "I thought that was an indication that the governor and her staff were cognizant of the ethical responsibilities of someone who is a candidate for the court."
He and Palin discussed Alaskan native law, his role models and his work history. At one point, she asked him to define an activist judge. He said he was expecting that, too.
"I think she has a good sense of the separation of powers and the proper role of the judiciary," Harrington says. "She thinks the role of the court is to decide cases and controversies that come before it, and she wants judges to do a good job of applying the law and precedent."
Harrington notes that, this fiscal year, Palin backed $200,000 in state funds for his firm, which provides free legal services for low-income Alaskans. The previous governor used a line-item veto to kill the funding.
"It's not an incredible sum, but it's $200,000 more than we had before," Harrington says.
Another judicial candidate who interviewed with Palin this year says Palin asked a questions about work history, background and basic judicial philosophy.
"Some of my colleagues say the Constitution is a living, breathing document. What do you think?" Palin asked, according to the candidate.
"I said I didn't think so," the candidate says, and Palin moved on. "I knew that was coming," the candidate says. "That's her litmus test."
The candidate was not offered the judgeship.
NO ROBERTS OR ALITOS
Biden has been in the thick of every high court battle for a generation now. In July 1987, while the Supreme Court nomination of Robert Bork was pending, Biden was struggling to define the roles of the Senate and of the president in the judicial nomination process.
The new Judiciary Committee chairman, pouring out his thoughts in a speech on the floor of the Senate, complained that, more and more, "nominees have been selected with more attention to their judicial philosophy and less attention to their detachment and statesmanship."
The Senate, he said, had a duty to prevent the president from remaking the Court in his image, particularly when the "Court is divided and a single nomination can bend it in the direction of the president's political purposes."
Biden pursued that goal with aggressive hearings on Bork that, depending on one's viewpoint, either broke a brilliant man who deserved to be on the Court, or saved the nation from a sharp rightward turn.
"Bork just sees the Constitution as a lifeless contract," Biden told Mark Gitenstein, then chief counsel of the Senate Judiciary Committee, late one night as he studied Bork's record. Gitenstein asserts the defeat of Bork by a 58-42 vote paved the way for more moderate nominees like Anthony Kennedy and David Souter, who slowed the Court's conservative march, at least until President George W. Bush named Roberts and Alito to the Court.
"Among conservatives Biden is viewed as having been very unfair to Bork and [Clarence] Thomas," says Leonard Leo, executive vice president of the Federalist Society. "He allowed the Thomas fiasco to unravel."
Even though at first, Biden was inclined to keep the Anita Hill allegations of sexual harassment against Thomas private, "at the end of the day, he was not able to withstand the pressure" to make them public, Leo says.
In the years after Thomas, Biden became increasingly regarded for his work on the Senate Foreign Relations Committee, which he now chairs. He is chairman of the Judiciary Subcommittee on Crime and Drugs.
If he ascends to the vice presidency, Biden will see the nominations from the executive's perspective, and may view his new mission as helping Obama steer the Court back to the center.
"Other than ending the war in Iraq, the single most significant thing that Barack Obama will do, and I hope I'll be able to help him, will be to determine who the next members of the Supreme Court are going to be," Biden said at an Aug. 26 roundtable discussion in Denver, site of the Democratic National Convention.
"I don't know if he will play that role, but he certainly can and has been active in that area," says Gitenstein, now a partner at Mayer Brown and an informal adviser to Biden in the campaign.
Of course, Obama, a lawyer and former constitutional law professor, appears unlikely to cede too much authority to his vice president.
"They're both con law professors," Gitenstein says. "They get along so well; they're real partners. It won't be a problem."
Gitenstein says Biden would look for nominees who represent "some mix of Ginsburg, Breyer and Souter -- moderate and in the middle."
"It's not just about Roe v. Wade, it's about one person/one vote, it's about Loving [v. Virginia, which struck down laws against interracial marriages]," Gitenstein says.
Eleanor Acheson, vice president and general counsel of Amtrak and former assistant attorney general for legal policy under Clinton, says Biden would also have access to veterans of confirmation battles past. "It's very likely that if the Obama-Biden ticket is elected, both their staffs will include people who have had a lot of experience in this matter."
