During an April budget hearing for the District of Columbia Judicial Nomination Commission, D.C. Councilmember Phil Mendelson had a rare public discussion with U.S. District Judge Emmet Sullivan, the commission chairman, about a process that takes place mostly behind closed doors.
Mendelson said he had heard that some candidates for D.C. Superior Court and D.C. Court of Appeals judgeships launched “private campaigns,” marshaling phone calls and letters of support. Sullivan replied that while he wouldn’t call them “campaigns,” the commission was always open to public feedback and, yes, some candidates were more effective at getting supporters to write or call.
That conversation highlighted uncertainties that have faced would-be judges in D.C. for decades: How many letters are too many or too few? Whose phone call would be well-received? Does a one-on-one meeting with a commission member matter, and is it appropriate?
In the commission’s nearly 40-year history, the process of applying for a local judgeship has become increasingly transparent. But some former candidates and judges who made it through successfully say the commission’s open-ended rules about how candidates can pitch themselves make it tough to know what can help or hurt. There’s a perception, at least, that candidates who make more of an effort to reach commission members outside of the formal application stand a better chance of moving forward.
Recommendation letters or phone calls are welcome, according to the commission’s rules, but not required. Candidates can request one-on-one meetings with commission members outside of the formal interview, but again, they’re not mandatory, and the members can say no.
Former candidates and judges reported a hodgepodge of approaches. Some took advantage of individual meetings and coordinated as many as 20 supporters to write and call, while others did little beyond what was required.
Superior Court Judge Judith Macaluso said she did all of the above. “It’s entirely legitimate for the candidate to think in terms of who they know or might have a lead to, whose input would be regarded as valuable by a selector,” said Macaluso, who was confirmed in 2003.
Superior Court Judge Anthony Epstein, who applied several times before he was confirmed in 2008, said he set up individual meetings and asked a few people to contact the commission. But he said he didn’t know if that made a difference between the times he didn’t get chosen and the time he did. “The process is pretty thorough,” he said. “I think it’s pretty hard to reinvent yourself.”
Sullivan, in his testimony, told Mendelson that it didn’t matter if one candidate had a larger stack of recommendation letters than another. “We’re not going to be swayed by a popularity contest,” he said. The commission as a whole interviews first-time applicants, and Sullivan, in an e-mail interview, said that those who don’t seek out one-on-one meetings “receive full consideration.”
Georgetown University Law Center Professor Susan Bloch, a commission member from 1999 to 2004, agreed that the members wouldn’t hold it against a candidate who didn’t go beyond the formal application, but said she encouraged applicants to consider doing so.
“Definitely it’s the case that some put in more effort in that manner than others do,” she said. “At some level it shows that the person really wants it.”
The District of Columbia is the only local court system in the United States to have judges nominated by the president and confirmed by the Senate. But the city relies on a process similar to the 36 states that also have merit-based judicial selection: A commission vets applicants and recommends candidates for appointment.
Under the system Congress set up for D.C. in 1973, the seven-person nominating commission includes two mayoral appointees, two D.C. Bar appointees, one D.C. Council appointee, one White House appointee and one federal judge appointed by the chief judge of the U.S. District Court for the District of Columbia.
For each judicial vacancy on Superior Court and the Court of Appeals, the commission recommends three candidates to the White House. The president nominates one person for confirmation proceedings before the Senate Committee on Homeland Security and Governmental Affairs, which oversees local D.C. affairs.
The commission’s meetings and records are confidential, but Sullivan has pushed to make the process more transparent. The commission began publishing the names of all applicants in 2008, encouraging public comment. The application, which is available online, explicitly states that applicants are allowed to ask for individual meetings and that the commission accept recommendation letters and endorsements.
Rachel Caufield, a professor at Drake University and research fellow for the American Judicature Society, said merit-selection jurisdictions can differ in what applicants can do outside of the formal application. In a survey last year of nomination commission members in 30 states and the District of Columbia, about 25 percent of respondents said they agreed to one-on-one meetings in accordance with their state’s rules. Other states, such as Utah, prohibit the practice.
D.C. commission members can decline one-on-one meetings, but Sullivan said he wasn’t aware of any current members with a “blanket policy” against them. The Rev. Morris Shearin, a current commission member, said the majority of applicants ask to meet with him. He said he finds the meetings helpful. “The series of questions that I may ask or share with them, when they come before me, may not be questions that will come up before the whole committee,” he said.
Covington & Burling senior counsel Thomas Williamson Jr. said that, when he served on the commission from 1998 to 2005, most members were open to one-on-one meetings. Williamson said the meetings were “fairly common” and gave him good background for the group interview.
Vytas Vergeer, legal clinic director for local nonprofit Bread for the City, said he was advised by judges and past candidates he spoke with to set up individual meetings. “I was given the impression by anyone I talked to that just sort of turning in your information might not be enough,” said Vergeer, who applied to Superior Court positions four times. Vergeer was recommended to the White House in 2008, but wasn’t the nominee.
But Reed Smith partner Gary Thompson, who was recommended to the White House the first time he applied for a Superior Court spot in 2010, is proof that one-on-one meetings aren’t a must. He said he didn’t feel comfortable asking for them. “I’m a litigator, and one of the cardinal rules is no ex parte communication with the judge,” he said. “To me, this was kind of like that — you don’t lobby behind the scenes.”
Merit-selection states can also differ in how much room they leave for public comment, Caufield said. In Arizona, for instance, members of the public can review files, sit in on interviews and attend meetings. On the other end of the spectrum are states like Hawaii, she said, where the entire process, including applicant names, are kept confidential.
The District falls somewhere in between. Sullivan said that, since the commission began publishing applicant names, “the amount of feedback has drastically increased,” including a mix of letters and phone calls from attorneys, nonattorney community members, judges and professional organizations. Sullivan told Mendelson that if commission members receive a phone call, they share notes with each other.
Williamson said he valued quality over quantity. Bloch said that hearing from someone she knew helped. “If someone I cared about, someone I respected was writing a letter, that would have an impact, especially if the writer…can give you insight that you wouldn’t otherwise have,” she said. Former commission member A. Knighton Stanley, who served from 2001 to 2006, said he especially valued comments from judges.
Andrew Fois, a deputy attorney general for the District’s Office of the Attorney General, said he took the fact that letters were optional to mean the commission didn’t want to be inundated. Fois, who applied five times to Superior Court and was recommended to the White House twice, said he asked two or three people to write on his behalf.
Walter Smith Jr., executive director of local nonprofit DC Appleseed, said he asked anywhere from 15 to 20 supporters to contact commission members, especially anyone they knew. Smith was recommended to the White House all three times he applied for an appeals court seat. “We’re all human beings. Since every applicant is going to have letters of recommendation coming in, it’s better to have it be letters coming from someone who knows a member of the commissioner personally,” he said.
THE NEXT HURDLE
Once candidates are recommended to the White House, they don’t start from scratch. The commission sends their application materials to the Office of the White House Counsel, which will recommend a candidate to the president for nomination. Candidates can resubmit recommendation letters or ask for new ones. The process is not public.
White House spokesman Eric Schultz said in an e-mail that White House staff “thoroughly evaluate the legal experience and professional reputation of all candidates who are recommended by the [commission]. We also interview all of the candidates and conduct a background investigation before nomination.”
Former White House Counsel Greg Craig, now a partner at Skadden, Arps, Slate, Meagher & Flom, said that when he served in that office from 2009 to 2010, he didn’t recall being lobbied once the commission recommended candidates to the local D.C. courts. There weren’t set rules about what candidates could submit with their application, he said, but “had we been the target of an avalanche of campaign activity, we would have established some rules.”
Former candidates and judges reported different strategies once the commission recommended them to the White House. Thompson said he forwarded recommendation letters but didn’t ask for new ones. Smith said he again asked between 15 and 20 people, especially those who knew members of the administration, to reach out.
Macaluso said she also asked supporters with ties to the administration to write or call. “I can’t imagine that I would have been selected as a judge without the individuals in the White House Counsel’s office having felt that they knew me better,” she said. Like any job application process, Macaluso said she thought having supporters with ties to decision-makers — commission members or the White House — helped. But she said she didn’t think that hurt the quality of D.C.’s local benches.
Vergeer said he thought that, although the commission did a good job picking diverse candidates, there was a “sliding scale” of knowledge among candidates about the degrees of “campaigning” that take place. “There is part of me that would rather it be more open and clear-cut across everything,” he said.
Mendelson said he didn’t plan on pursuing the issue after hearing from Sullivan last month. “Most states elect [judges]. I find that inconceivable,” he said, adding, “I think we have it pretty good.”
Contact Zoe Tillman at firstname.lastname@example.org.