Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Stung by the political defeat of Judge Charles Pickering Sr., the Bush administration is likely in the next few weeks to bring on a high-level official with day-to-day responsibility for shepherding the president’s judicial nominations through the Senate. “They are going to bring somebody in as a go-to guy, someone who would have no other duties,” says a GOP Hill staffer with knowledge of the plan. “This would be someone who has been around Washington for a couple of decades and knows his way around.” The effort comes as a Bush nominee for the District Court in Utah, University of Utah College of Law professor Paul Cassell, is expected to field sharp questions from Democrats at his Judiciary Committee hearing today. Cassell is best known for unsuccessfully seeking to overturn the Miranda decision in an argument before the Supreme Court in 2000. An administration official confirms that ongoing discussions at the White House may soon lead to a decision to hire a high-level lobbying strategist for judicial nominations. “Resources will definitely be brought on to meet the needs,” says this official, who cautions that “it hasn’t quite reached the point of decision.” This source says the administration may instead decide to clarify the confirmation-related duties of current White House and Justice Department officials and to set up ways to improve lines of communication. The official says other steps are being taken to shore up deficiencies that became apparent in the White House response to assaults on Pickering’s record by liberal groups and senators. There are now meetings about nominations every two weeks, for example, that include key members of the Senate leadership and high executive officials such as White House Counsel Alberto Gonzales. The GOP aide on the Hill adds that it’s crucial for the White House, the Justice Department, the Republican leadership, and GOP Judiciary Committee members to work together in defending the administration’s nominees. Efforts to push Pickering suffered because there was no central strategist, this aide says. “The key is coordination,” says the staffer. “We have to get our act together.” Says another Hill staffer who was not familiar with the discussions about revamping the administration’s response: “We just got beat politically. They were able to define this guy as the antichrist. What we need is a big-time politically savvy lobbyist, not a Supreme Court clerk. We don’t have enough butt-kickers. We have to realize that we’re in a war here.” Pickering is a federal trial judge in Hattiesburg, Miss., tapped last year for a seat on the 5th U.S. Circuit Court of Appeals. Despite close ties to Senate Minority Leader Trent Lott, a fellow Mississippian, Pickering was rejected March 14 by a 10-9 party-line committee vote. Although President George W. Bush made several personal pleas for Pickering as the vote approached, many observers still see his involvement, like many aspects of the pro-Pickering effort, as too little and too late. In administration circles, Pickering was not regarded as an especially controversial nominee until late January. Although the original charges against Pickering, involving alleged racial insensitivity, proved hard to sustain, his liberal opponents were able to put the White House on the defensive from the start — and ultimately to frame the vote as a test of each senator’s commitment to appointing federal judges from the political mainstream. Of course, it’s not clear that a greater effort could have saved the nomination from defeat in a highly partisan Judiciary panel that narrowly favors the Democrats. PAST IS PRESENT Many Senate Democrats still harbor resentment against Republicans for delaying and thwarting many of President Bill Clinton’s judicial nominees when the GOP controlled the Senate. Lists of Clinton nominees who didn’t get a hearing or a committee vote circulated in the packed Dirksen Building hearing room on March 14. This anger emerged repeatedly at the 412-hour committee meeting, which ended with three 10-9 votes, all rejecting Pickering. The last two tallies were in response to motions by Sen. Arlen Specter, R-Pa., to report the nomination to the floor — where it is believed Pickering would have been confirmed — without a committee recommendation or with a negative recommendation. Other nominees whose hearings are expected to take place later this year, such as D.C. Circuit nominee Miguel Estrada and 10th Circuit choice Michael McConnell, are seen as likely targets for attacks by well-prepared and well-funded groups such as People for the American Way and the Alliance for Justice, and so may require considerable help. Those anticipated battles, as well as the prospect of an opening on the Supreme Court, are the reasons that people in high places are thinking about bringing in a top-level lobby strategist. They don’t want a repeat performance. Explains the congressional aide: “When [People for the American Way President] Ralph Neas makes points one, two and three, we need someone who can refute points one, two and three in the same news cycle. When you wanted to find something bad about Pickering, you knew you could always go to Ralph Neas or to [Alliance for Justice President] Nan Aron. When you wanted to find something good about Pickering, it wasn’t clear where you could go.” Marcia Kuntz, director of the Judicial Selection Project of the Alliance for Justice, downplays the importance of strategy and public relations in the battle. “We believe that Judge Pickering was rejected by the committee because of his record,” she says. But the liberal groups’ superior preparation and coordination had a lot to do with their victory, many on both sides say. “It was hard to say who was in charge on Pickering,” says Eleanor Acheson, who as assistant attorney general helped shepherd Clinton judge nominees and who followed the Pickering nomination closely. “And once the guy got into trouble, there was no one there to help him make his case.” The GOP Capitol Hill staffer says that the “go-to person” could end up being someone already in the administration, such as a member of Nicholas Calio’s White House legislative affairs team. On the other hand, according to the staffer, the administration might recruit someone with Hill or administration experience but currently out of government for a stint of a year or so. It’s not clear whose staff the person would be assigned to, but sources say the White House is the most likely possibility. In addition to Calio’s group, the Department of Justice’s Office of Legislative Affairs, headed by Daniel Bryant, the DOJ Office of Legal Policy, under Viet Dinh, and the White House counsel’s office all play key roles in defending any nominee. No matter what course the administration takes, the high-ranking executive official says the next confirmation battle will not resemble this one. “We’ll make sure that from now on, we have just one song sheet that we’re singing off of.” PREPARING FOR CASSELL Administration sources say that even though Cassell, the Utah nominee whose hearing is set for today, has drawn little formal opposition, they are not taking that hearing lightly. Kuntz of the Alliance for Justice says that while her group has not yet taken a stand on Cassell, it will do so later. Cassell, 42, is a graduate of Stanford Law School and a former Assistant U.S. Attorney in the Eastern District of Virginia. He clerked for then-D.C. Circuit Judge Antonin Scalia and for then-Chief Justice Warren Burger. The Alliance sees problems with Cassell in two areas. First, says Kuntz, Cassell launched a concerted effort to get Miranda v. Arizona, the famous criminal procedure case of 1966, overruled. In 2000, Cassell argued before the Supreme Court in an amicus role that the Miranda warnings are not required by the Constitution and that a 1968 federal statute effectively overruled the decision. The high court rejected his overture in a 7-2 ruling, with Chief Justice William Rehnquist writing for the majority. “This suggests a broader interest on his part in curtailing the rights of criminal defendants and suspects,” Kuntz says. Second, Kuntz says, Cassell has spoken out and worked vigorously in favor of the death penalty and is indifferent to the possibility that innocent people may be wrongly condemned to death. Cassell believes that “the societal risks of executing an innocent person are far outweighed by the risks to society of not executing guilty persons,” says Kuntz. Cassell was unavailable for comment. A GOP Senate aide responds, “Paul Cassell is a distinguished constitutional scholar who has worked tirelessly on behalf of victims’ rights. He has an extraordinary knowledge of the law.” The aide says that on the death penalty, a subject about which Cassell has written extensively, Cassell has been “one of the few people who has actually looked at the facts of each death penalty case and the law, as opposed to looking at the politics. He is anything but a fanatic.” Cassell may benefit from the fact that he is up for a district court seat, as opposed to a slot on a court of appeals. District judgeships are usually subject to far less scrutiny than appeals judgeships. In addition, Cassell is championed by Sen. Orrin Hatch, R-Utah, the ranking Republican on the Judiciary Committee.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.