Dan Coats had never met White House Counsel Harriet Miers. But the former Republican senator from Indiana agreed to appear on television to endorse Miers’ nomination to the U.S. Supreme Court when the Bush administration assured him Fox News host Brit Hume would be a friendly interviewer. “Of course, his first question was, ‘Have you met Harriet Miers?’ ” Coats wrote two years later, recalling the experience in the Hamline Journal of Public Law & Policy . Coats answered Hume honestly. And the nomination, he wrote, went downhill from there.
The Obama administration has avoided any similar embarrassment during the first few days of Judge Sonia Sotomayor’s nomination to the Court. And to keep up the momentum, there’s no shortage of lessons to be learned from those who, like Coats, have tried to guide potential justices up the mountain of Senate confirmation.
Some call them “sherpas,” in reference to Himalayan guides. Others prefer “shepherds” or “chaperones.” But whatever the informal title, they typically come from outside the administration, bringing to the process their stature, personal relationships with senators and knowledge of the political dynamics. They tend to be former administration officials, K Street veterans or even current or former senators themselves. It’s natural for nominees to the Supreme Court to need help, said David Yalof, an associate professor of political science at the University of Connecticut who has written about confirmations. “It can be an imposing and intimidating process even for the most seasoned of political veterans,” Yalof said, “and these jurists are hardly the most seasoned of political veterans.”
In interviews, those who have served as sherpas or worked with them say the White House will need to heed the smallest details, react promptly to any unexpected barriers and step carefully around the traditions of the Senate.
Sotomayor, like most other recent Supreme Court nominees, has the advantage of having gone through the process before. Her nomination to the U.S. Court of Appeals for the 2d Circuit even lingered for 15 months, giving her an especially trying test. Still, she will likely find this experience to be different. “There is nothing like a Supreme Court nomination in terms of the white-hot scrutiny that it gets and the kind of intense level of interest and range of issues and questions that come up — from the Hill, from the press, from interest groups on both sides,” said Cliff Sloan, who helped guide Justice Stephen Breyer’s nomination in 1994 as an associate White House counsel.
Former Sen. John Danforth (R-Mo.) emphasizes the importance of not presuming anything. Danforth, who guided his former employee Justice Clarence Thomas to confirmation in 1991, said some nominees make the mistake of saying what they will do when they are confirmed. He noted, “You say, ‘If the Senate should see fit to confirm me.’ ”
The advice he would give Sotomayor is simple: “Just be yourself and be straightforward.” Danforth, now a partner at Bryan Cave, said he was impressed with Sotomayor’s life story and her manner when she appeared at the White House on May 26. “I would very much doubt that she’ll have much of a problem, unless there’s something totally unforeseen in this. It looks to me like she’ll be very handily confirmed,” he said, “but that doesn’t mean she shouldn’t handle it in a very serious manner.”
One Democratic lawyer who advised the Clinton administration on Supreme Court confirmations said he also wouldn’t tell Sotomayor to change her personality or style. The lawyer suggested that her apparent comfort in speaking without notes — as she did when talking about friends and family at her White House introduction — reflects the self-assurance of a trial judge. “It really gives you a sense of how to act, how to talk,” said the lawyer, who asked not to be named because of the sensitivity of the process.
QUESTIONS AND ANSWERS
As interest groups and the media dig into Sotomayor’s background during the coming weeks, Sloan said it will be important for Sotomayor’s advisers to react with speed and accuracy to anything new that arises. “You’ve got to be thorough. You’ve got to know what you’re talking about,” he said. “The worst thing in the world is to give an answer that would have to be changed for some reason.”
Several lawyers said that it’s surprisingly easy for nominees to forget how much they know about the cases they’ve handled, especially when senators press them in public about their reasoning. It will be up to the people guiding Sotomayor to remind her of that, said a former Democratic counsel to the Senate Judiciary Committee, who also asked not to be named. “In all likelihood, the nominee has thought a lot more about his or her answers than the senators have about their questions,” the former counsel said.
Sotomayor is expected to begin visiting individual senators as soon as this week, a process that can be grueling for the nominee and for those advising her. Coats, who sat in on the meetings for Miers and Justice Samuel Alito Jr., recalled that the questions “ranged from polite and cordial to uncomfortable and unproductive.” Alito met with more than 80 senators, usually for an hour or more, with Coats accompanying him.
It’s not clear who will go with Sotomayor to those meetings, though Sen. Chuck Schumer (D-N.Y.), a senior member of the Judiciary Committee, is poised to be her top advocate outside the administration. Other sitting senators did the same — effectively taking on sherpa duties — for the past two Democratic nominees for the Supreme Court: the late Sen. Daniel Patrick Moynihan (D-N.Y.) for Justice Ruth Bader Ginsburg and Sen. Edward Kennedy (D-Mass.) for Breyer.
President George W. Bush was unusual in choosing two former senators to take on the role: Coats, now a senior policy adviser at King & Spalding, for Miers and Alito, and Fred Thompson of Tennessee for Chief Justice John Roberts Jr. Rachel Brand, who as a Justice Department official worked on the Bush nominations, said Coats and Thompson supplemented the lobbying that sitting senators were doing. “Both of them had good relationships on both sides of the aisle. Neither one of them is viewed to be extremely partisan,” said Brand, now counsel to Wilmer Cutler Pickering Hale and Dorr.
Sloan, now a partner at Skadden, Arps, Slate, Meagher & Flom, said Breyer had an obvious guide in Kennedy because Breyer had been chief counsel to the Senate Judiciary Committee in the late 1970s when Kennedy was chairman. He recalled standing with the two just outside the Senate chamber. “Senator Kennedy was buttonholing senators as they stepped off the floor and introducing or reintroducing them to then-Judge Breyer,” Sloan said. “It was a remarkable hour because Senator Kennedy’s relations with senators across the body were so warm that it was a sight like no other. He would bring them over and have a personal comment for each senator based on his relationship to the senator. And he would highlight a particular point that he thought would interest them about Judge Breyer.”
Unlike previous administrations, the Obama administration so far hasn’t brought in many advocates from the outside, in part because so many veterans of the confirmation process are working inside. Vice President Joseph Biden voted on the nomination of every sitting justice. His chief of staff, Ronald Klain, was an associate White House counsel in the Clinton administration. Biden’s counsel, Cynthia Hogan, led the Democratic staff of the Senate Judiciary Committee during the Breyer and Ginsburg nominations. Susan Davies, now in the White House Counsel’s Office, was previously a top lawyer for the Judiciary Committee.
Asked about the absence of “graybeards” so far, White House press secretary Robert Gibbs said last week that it doesn’t signal any “casualness” about the process. “There’s a team here that’s very involved in this,” he said. “I will check the color of their facial hair at the conclusion of this briefing. I don’t think Mr. Klain grew one overnight.”
Still, the White House has brought in two messaging experts: Stephanie Cutter, who most recently was a counselor to Treasury Secretary Timothy Geithner, and Ricki Seidman, a senior principal at TSD Communications. Both worked in communications in the Clinton White House, though they also have law degrees.
Kenneth Feinberg, managing partner of Feinberg Rozen, said it’s important Sotomayor have people in the process she trusts. Feinberg was a prominent defender of Breyer, a longtime friend, when questions arose about Breyer’s investment in Lloyd’s of London. The “nomination team usually involves one or two people who aren’t affiliated at that point in time with the White House, but are friends of the nominee,” Feinberg said.
David Ingram can be reached at email@example.com.