Washington-The well-handled U.S. Supreme Court nominee is now a fixture in the political process, and much of the credit goes to those so-called murder boards, or preparation sessions for the Senate confirmation hearings.
The lawyers participating on the murder boards represent a mix of government and nongovernment attorneys with backgrounds in the legal areas most likely to interest the senators.
Supreme Court nominee Judge Samuel Alito, who appeared headed to near-certain confirmation late last week in the U.S. Senate, was shepherded through all of the murder boards by a team that included Steve Schmidt, special advisor to the president in charge of the White House confirmation team, and Harriet Miers, counsel to the president.
Also present during all of the practice sessions was Shannen W. Coffin, general counsel to Vice President Dick Cheney, a former partner at Washington’s Steptoe & Johnson, as well as Alito’s main liaisons with the Senate-Senator Dan Coats, R-Ind., who, ironically, had been tapped by the White House to guide Miers through the process until she withdrew her nomination, and Republican lobbyist Ed Gillespie, former chairman of the Republican National Committee.
The value of rehearsal
That these murder boards have been successful is obvious, said Beth Bonora, a jury consultant with Bonora D’Andrea in San Francisco.
“It’s true for everyone that if you are required to think on your feet and want to answer in a particular way, walking through ahead of time helps,” said Bonora. “Lawyers all the time, with or without trial consultants, rehearse and prepare for court.
“There are other questions that are much more policy issues about Supreme Court nominees and what they ought to be rightfully forthcoming about in their answers,” she added. “But that’s different from the question of whether preparation helps-it does.”
|Alito Murder Board Participants|
|Source: Senate Judiciary Committee
Steve Schmidt, special advisor to the President in charge of the White Houseconfirmation team
Harriet Miers, Counsel to the President
Bill Kelley, deputy counsel to the President
Brett Kavanaugh, assistant to the President and staff secretary
Bill Burck, deputy assistant to the President and deputy staff secretary
Bill Kelley, deputy counsel to the President
Jenny Brosnahan, associate counsel to the President
Grant Dixton, associate counsel to the President
Leslie Fahrenkopf, associate counsel to the President
Dabney Friedrich, associate counsel to the President
Richard Painter, associate counsel to the President
Ben Powell, associate counsel to the President
Naomi Rao, associate counsel to the President
Brett Gerry, associate counsel to the President
Robert F. Hoyt, executive office of the President
Shannen W. Coffin, general counsel to Vice President Dick Cheney, former partner in Washington, D.C.�s Steptoe & Johnson
DEPARTMENT OF JUSTICE
Kyle Sampson, chief of staff to Attorney General Alberto Gonzales
Raul Yanes, senior counsel to the attorney general
Wan Kim, assistant attorney general Civil Rights Division
Steve Bradbury, principal deputy assistant attorney general, Office of LegalCounsel
Rachel Brand, assistant attorney general, Office of Legal Policy
Richard Hertling, principal deputy assistant attorney general, Office ofLegal Policy
Kristi Macklin, deputy assistant attorney general, Office of Legal Policy
Brent McIntosh, deputy assistant attorney general, Office of Legal Policy
Gordon Todd, counsel to the assistant attorney general, Civil RightsDivision
Ryan Bound, chief of staff, Office of Legal Policy
Assistant to the Solicitor General John Elwood
Jamie Brown, Office of Professional Responsibility, former special assistantto President Bush, Legislative Affairs
Elisebeth Cook, Office of the Attorney General
Sen. Dan Coats, R-Ind.
Ed Gillespie, Republican lobbyist and former chairman of the RepublicanNational Committee
Theodore B. Olson, partner in Washington, D.C.�s Gibson, Dunn & Crutcher,former Solicitor General
Adam Ciongoli, senior vice president and general counsel, Time Warner Inc.,former Alito law clerk
Michael A. Carvin, partner in Washington, D.C.�s Jones Day, a former deputyassistant attorney general Office of Legal Counsel
Charles J. Cooper, partner in Washington, D.C.�s Cooper & Kirk, a formerassistant attorney general Office of Legal Counsel
Timothy Flanigan, general counsel for corporate and international law, Tyco,a former deputy counsel to the President
Leonard Leo, Executive vice president of the Federalist Society
John Manning Harvard Law
Not surprisingly, the nongovernment attorneys who participated in some of the murder boards included former stars of the administrations of Ronald Reagan, George H.W. Bush and George W. Bush, such as former U.S. Solicitor General Theodore Olson, who has returned to his post as head of the constitutional and appellate practice at Los Angeles-based Gibson, Dunn & Crutcher.
Another participant was Charles J. Cooper, partner in Washington’s Cooper & Kirk, a former assistant attorney general at the helm of the Office of Legal Counsel in the Reagan Justice Department.
In one session, Alito faced a very familiar face: his former law clerk, Adam Ciongoli, now senior vice president and general counsel at Time Warner Inc. Ciongoli also served as counsel to former Attorney General John Ashcroft from 2001 to 2003.
Timothy Flanigan, general counsel for corporate and international law at Tyco International Ltd., also was a participant.
Flanigan had his own experience with the Senate process recently after being nominated as deputy attorney general-second in command to Attorney General Alberto Gonzales.
But his experience, unlike what Alito has undergone, was less successful.
Bush was forced to withdraw his nomination after a number of senators questioned his role in developing the policies that led to torture and abuse at Guant�namo Bay and Iraq’s Abu Ghraib prisons.
Flanigan, a former Justice Department official in George H.W. Bush’s administration, had had experience then with judicial nominations, including that of Justice Clarence Thomas.
Other nongovernment lawyers helping with the murder boards included Michael A. Carvin, partner in the Washington office of Jones Day, a former deputy assistant attorney general at DOJ’s Office of Legal Counsel.
The conservative Federalist Society continues to play an influential role in judicial nominations. Leonard Leo, the society’s executive vice president, was a murder board participant. And academia offered John Manning of Harvard Law School, head of the Office of Legal Counsel when Ashcroft led the Justice Department.
Chief Justice John G. Roberts Jr. reportedly underwent at least a dozen murder boards in preparing for his hearings.
A bit of controversy
The practice became somewhat controversial during the Alito hearings when Senator Russ Feingold, D-Wis., asked the judge whether he was coached by a White House lawyer-Benjamin Powell-who was involved in constructing the legal justification for the Bush administration’s domestic wiretapping program involving the National Security Agency.
Powell, who was a regular participant in the Alito murder boards, recently received a recess appointment as general counsel to the director of the Office of National Intelligence.
Senator Dianne Feinstein, D-Calif., also questioned the use of murder boards because of the unhelpful “polish” that they put on nominees.
Despite those concerns, murder boards are most likely here to stay.