Christopher Kang is a veteran of the judge wars. At their height during the George W. Bush administration, he was a top aide to the Senate’s No. 2 Democrat and advised the effort to block some of Bush’s most conservative federal appeals court nominees.
Now Kang has a different mission: lead the selection of President Barack Obama’s nominees and get them confirmed.
It’s the kind of switch not everyone could pull off, because not all Republicans are ready to let bygones be bygones on the treatment of past judicial nominees. But Kang, 35, is making an attempt. He started full-time in August as a senior counsel in the White House running the president’s judicial nominations process.
After a decade in Washington, he’s managed to preserve relationships with key people across the aisle, and he’s hoping to put that good will to use on behalf of Obama’s picks.
His demeanor helps. Kang has a high-pitched giggle of a laugh, and congressional aides of both parties call him one of the most visibly happy colleagues they’ve had. “He was disarmingly cheerful,” said James Ho, a former chief counsel to Sen. John Cornyn (R-Texas) and a partner in Gibson, Dunn & Crutcher’s Dallas office.
In an interview on Sept. 22, Kang said he’s committed to following the strategy Obama long ago set out on judicial nominees: consult extensively with senators and aides, including Republicans, and highlight the impact of the historically high vacancy rate on the federal bench, such as longer waits for civil trials.
“Both sides probably have legitimate complaints about how the process has been run, whether or not it was the judicial nominees under President Clinton who didn’t get out of committee or the nominees by President Bush who Republicans view should not have been blocked,” he said.
“The problem with the back and forth,” he continued, “is that it can escalate, and the hope we have is that, in part by doing all of this consultation and having so many consensus nominees, we’ll be able to help de-escalate this a little bit.”
In that spirit, the White House rarely puts forward a nominee over the objection of a home-state senator. The deference has at times alienated House Democrats, who can be overshadowed by Senate Republicans from the same state, and it’s led to a slower selection process than some liberal legal advocates would like.
One recent exception was the choice of Arvo Mikkanen, an assistant U.S. attorney, for U.S. District Court for the Northern District of Oklahoma. Sens. Tom Coburn (R-Okla.) and James Inhofe (R-Okla.) announced their opposition almost immediately, claiming a lack of consultation, but a White House official said at the time that the senators had been consulted. Kang said there was a miscommunication, not an intentional snub. “I think that they had been consulted, but perhaps we hadn’t closed that loop before nomination,” he said. “That really is the exception.”
Kang’s new job means he may interview scores of people who want to be federal judges, but he has never argued before a judge. “I went to law school knowing I never wanted to practice law,” he said. Instead, his interest was community service. His parents immigrated from South Korea and worked for the public schools in Gary, Ind., and his father, who is blind, is an advocate for the disabled. In college at the University of Chicago, Kang was head of the student office coordinating volunteer opportunities — a job where he worked with Michelle Obama, a dean of students at the time.
He spent his law school summers in the legal department of the Chicago Board of Education and working for Sen. Edward Kennedy (D-Mass.). After graduation, he went to work for Sen. Richard Durbin (D-Ill.), who is heavily involved in judicial nominations as the Democratic whip and a member of the Senate Judiciary Committee. Kang worked for Durbin on the committee and then on the Senate floor, where he would spend hours each day carrying out the Democrats’ strategy and getting to know senators personally.
Mark Keam, a former chief counsel to Durbin, said Kang will be able to use that experience as he searches for judicial nominees who can win confirmation. “You have to game out the entire scenario of how this nomination’s going to work, and that’s a set of skills that most lawyers in the private sector don’t have,” said Keam, who’s now a member of the Virginia House of Delegates.
Kang has spent the past 2 1/2 years as one of the White House’s lobbyists in the Senate, so he’s already worked part-time on confirming Obama’s judicial nominees. During mock sessions leading up to Justice Elena Kagan’s confirmation hearing, he played a member of the Senate Judiciary Committee. (He won’t say which one.) As the new head of the nominations team, he’s working closely with another former Durbin lawyer, Michael Zubrensky, a deputy assistant attorney general in the Justice Department who handles vetting.
With 92 vacancies on the federal courts, Kang isn’t thinking yet about filling the entire judiciary. He said his goal for the rest of Obama’s term is to get the number of vacancies back to where it was in January 2009, at about 55. He thinks that’s realistic, given that 27 nominees are awaiting final Senate votes after getting positive support in committee. “If they were to confirm those tomorrow, you could cut the vacancy rate by almost a third and make a pretty significant dent toward getting to 55,” he said.
Douglas Kendall, president of the liberal Constitutional Accountability Center, said he believes Kang understands the urgency of acting before the presidential campaign gets fully underway. “Chris is focused and energized and has the White House’s full support for the proposition that we have got to get the vacancy rate down,” he said.
Others think the White House needs to put more emphasis on the issue if it wants the Senate to act, because the Senate’s rules encourage delays. “As good as Chris is, it will require the president to step up pressure,” said Nan Aron, president of the liberal Alliance for Justice.
Curt Levey, executive director of the conservative Committee for Justice, said it’s unlikely Obama will do that. “It may just be their goal is to keep things going at a lethargic pace, and Chris Kang may be just a caretaker in a sense,” he said.
One major test for the White House is on the horizon. Caitlin Halligan, a former New York state solicitor general, has been waiting since March for the Senate to act on her nomination for the U.S. Court of Appeals for the D.C. Circuit. Gun-rights organizations oppose her because, under then-Attorney General Eliot Spitzer, she worked on the state’s public-nuisance claims against gun manufacturers. No vote has been scheduled.
As for Obama stepping up pressure on nominees generally, Kang said any perception the president and his staff don’t care is false. “I’m not going to go back and see how many times the president has spoken about judicial nominees. Everybody would like the president to do more on their issues, but I think that this president certainly understands the importance of judges,” he said. “It’s not going to be the high-profile issue that the economy is, but it’s still a high-profile one.”
David Ingram can be contacted at firstname.lastname@example.org.