On Marc Hearron’s first day as Sen. Dianne Feinstein’s lead counsel for judicial nominations, President Donald Trump nominated Brett Kavanaugh for the U.S. Supreme Court. Hearron would quickly transition from his life as a Morrison & Foerster partner as a historic confirmation fight erupted.
Hearron joined Feinstein’s staff as senior counsel after 11 years at Morrison & Foerster, where he was a partner in the firm’s Supreme Court and appellate practice. Feinstein, the California Democrat, is the ranking member on the Senate Judiciary Committee.
Hearron’s law firm work bore little resemblance to management of a nominations team that was involved in the most contentious Supreme Court confirmation since the Clarence Thomas-Anita Hill hearings in 1991. Hearron said it was his law firm work, particularly his pro bono cases, that spurred his interest in making the leap to Capitol Hill.
Hearron recently left Capitol Hill, embarking on a new role in public advocacy focusing on reproductive rights. Phillip Brest has succeeded Hearron as Feinstein’s senior counsel for nominations.
“I came to realize that I missed lawyering too much. I liked having a client, representing their interests, writing briefs, and going to court. Handling nominations is extremely important, but at the end of the day it doesn’t involve acting as a lawyer,” Hearron said.
We reached out to Hearron to talk about his role as Feinstein’s chief nomination counsel. The interview that follows was edited for length and clarity.
NLJ: How did you come to the Senate position?
Hearron: I spent 11 years in practice after having court clerkships before that. I really enjoyed the work, and in particular, the pro bono work I was doing. I really just wanted to move into the public arena, and so when this opening came up at the Judiciary Committee, it was a great opportunity and a very exciting time. The Senate Judiciary Committee has such a long and historic reputation. I wanted to be working on issues that I cared so deeply about.
You accepted the job before Justice Anthony Kennedy announced his retirement?
That’s right. I took a week off between the jobs, although during that week I actually came in and worked a little bit just to acclimate myself. My first day was the day of the Kavanaugh nomination. I jumped right into the frying pan. It was truly one of the most intense experiences I’ve ever been through, and just the duration, it was definitely tough.
What surprised you the most when you stepped into the job?
It’s something that for someone who has done litigation their entire career takes some adjusting. Someone told me once I got on the Hill—and it’s very true and very real—that when you’re litigating, you may be arguing with the other side about something, but ultimately, a judge is going to decide who’s right and is going to issue a ruling. On the Hill, there is no judge. The judge is the court of public opinion, and so you have to really work to try to get the public to care about issues that are going on.
Your role was heading the judicial nomination team for Sen. Feinstein. Who was on your team?
It was small, and then it very quickly ballooned into a very large team, obviously, because of the Kavanaugh nomination. So, it probably quadrupled in size, or, even, potentially more than that. It really is an all-hands-on-deck experience. We hired a lot of special counsels to come in and work on a temporary basis. For Kavanaugh, there were hundreds of thousands of pages of documents to review. One of the controversies was that Republicans had the most access to the vast majority of his records but it still took a lot of our people to review what did come in. We reviewed all of the opinions that he wrote, all of the cases that he sat on as a judge. We hired a lot of talented people. Both sides did.
On our side, there was an area set up for our people as sort of a war room. We called it “the bunker.” It was down in the basement of the Dirksen building.
Even before the Kavanaugh nomination, Senate Judiciary Republicans were moving judicial nominations at a rapid pace. Did that leave any time for a personal life?
Well, during the Kavanaugh hearings, I had no personal life, for sure. Once that settled down. I was able to balance things a little bit easier. But the majority was still moving at something of a record pace. They held hearings during the recess, which certainly affected everyone. Recess is a time when staffers usually are able to recharge a little bit. In the past, a lot of these things—like the timing of hearings—were the product of negotiations. Things may change under the new chairman but they are really just dictated by the majority.
Was the pace and workload much different from your law firm experience?
So the main difference is, when you’re at the firm, there are times where it’s just nonstop work. If you have so much to do, for example, if I have a brief to write and I need to get a huge section of it done in the next 48 hours, I would typically work from home and just shelter myself and try to do that. There’s not that much flexibility on the Hill. That is definitely more of a face-time culture. You have to always be there to respond to your boss if your boss needs you.
Did you speak to Kavanaugh at all during the confirmation process or to Dr. Ford?
I did not. I had met him previously. We were in the Edward Coke Appellate Inn of Court at the same time, and I had met him there. There were members of the team who did the background investigation and as part of the investigations, they did speak with him and Dr. Ford. I never met Dr. Ford. We didn’t know what kind of witness she was going to be. We were not coordinating with her.
We did not see drafts of statements from either Judge Kavanaugh or Dr. Ford. Under the Committee rules, statements have to be provided the day before the testimony, so that is when we saw them. Of course, the statement Judge Kavanaugh actually gave at the hearing is quite different from the one he provided in advance.
What took the bulk of your time during the Kavanaugh hearings?
A large part of my role was trying to handle the documents, dealing with document fights, document negotiations and processing the documents as they came in, heading the document team. There also was a whole team working on questions. Given the short amount of time the members had to ask questions, only a handful of questions actually end up being asked by each member. I worked on the questions Sen. Feinstein asked as well as questions for the record posed afterwards. I also worked closely with the counsels for the other Democratic committee members.
There was considerable skepticism of the final FBI investigation into the Kavanaugh allegation. Could the U.S. House examine that investigation now?
I certainly think that, at a minimum, there should be a look into how the background investigation process is handled in general. I don’t really want to comment on whether the House ought to do its own investigation into the Kavanaugh report. I’ll leave that up to them. But I do think that it would be good to have some rules, at least. The way that the background investigation works is: it’s really done at the request of the White House, and the White House shares the results of the investigation, or agrees to allow the results of the investigation to be shared with the Congress. I think it would be within Congress’ power to pass some legislation about what’s required to be in an investigation.
Stepping back from your experience, would you recommend any changes to the confirmation process?
The main change that I would like to see would be for a return to a spirit of working together, the majority and the minority working together. As we were working on the nomination, I did a lot of research into prior Supreme Court nominations, and there were so many things that previously were just the product of negotiation and now are just dictated by the majority.
I think a return to that spirit would lead at least to some better feelings among the members of the committee. As far as the process itself goes, it is what it is. The Framers set it up to be a political process, in my view, and so it’s just inherently political. And with the court deciding the types of issues that they decide, that affect the everyday lives of millions of Americans, it’s just going to take on the type of importance that it has in the last several hearings. I don’t know of a way to change that, at least not in the near future.
What was the best part of the job?
Just being in the middle of the biggest thing going on in the country, waking up every day and going to it, and it’s not even just Kavanaugh. I also actually really enjoyed meeting with members of the press. That’s the closest that you get to having a judge, talking to a reporter and trying to explain to them what’s going on and then hoping that their story will reflect what is actually happening. You know that the reporter’s also talking to the Republicans, and they’re going to give them a spin, and you’re hoping that your view of the facts actually is what’s reflected in the story. So that was fun and not something I have had a lot of experience doing before.
And the worst part of the job?
Being in the minority.
What’s next on your plate?
I’m moving back into a litigation role that’s still in the public arena, so that for me, at least at this stage of my career, is a much better fit. I’m going to the Center for Reproductive Rights. I’ve worked with them when I was at MoFo on the Whole Woman’s Health case and the clinic admitting privileges case which I argued in the Fifth Circuit. I know the work they do and I’m very excited to become a part of it.