How to Scale the High Court
In Tibet, a sherpa is a rugged, skilled hand who guides trekkers up the slopes of the Himalayas. In Washington, the sherpa is also an experienced individual who helps neophytes scale seemingly impossible heights -- in this case, guiding nominees along treacherous pathways toward the mountain peak known as the Supreme Court of the United States.
I've done the Washington sherpa job myself a few times, and I can attest that it is one of the most arduous -- and ego-boosting -- assignments in town. You have to hold the nominee's hand through as many as 100 private meetings in Senate offices, spend days poring over questionnaires in countless White House sessions, stage dozens of mock hearings or "murder boards" and plot political and media strategy with a single goal in mind: convincing a majority of Senators that the president's nominee, whoever it may be, is qualified to serve as an Associate Justice.
Despite a comfortable majority of Democrats in the U.S. Senate, President Obama will need some help. How much, of course, depends on the man or woman he nominates. Actually, it very likely will be a "she," so let's preempt the pick and move forward on that assumption.
Stephanie Cutter, counselor to Treasury Secretary Timothy F. Geithner, is heading to the White House temporarily to help with the process. Here is some advice for her and her colleagues.
When the nominee's name is announced -- or leaked -- you must prepare to see everything about her (and I mean everything) appear in the public eye. Her high-school yearbook will be scrutinized. Her Sunday school teacher will be interviewed. (And the interview will be Twittered.) Obscure neighborhood civic association speeches will be parsed. Deeds on homes she purchased with be analyzed. Voter registration lists will be examined. And the search will be on for the elusive Law Review article or clerk brief that sheds light on her legal philosophy.
While this is going on, your job is to humanize the nominee. You cannot -- so don't try to -- change her personality, but you can come up with a heartwarming hobby or piece together a personal story that speaks to her grasp of legal reasoning. Recall how Chief Justice John Roberts's adorable children upstaged President George W. Bush at the White House announcement by playing around in the East Room. Similar spontaneous humanizing scenarios must be considered.
Don't be cowed by the brilliance of the nominee; conduct high-school government class-style review sessions of the basics. Ask her when she last looked at the Constitution. Better yet, get a Heritage Foundation pocket copy and make her read it again. Ask her to go through the Federalist Papers, Marbury v. Madison, Griswold v. Connecticut and other pivotal cases that shifted the country's legal course.
Historically, your challenge is sobering: Of 158 Supreme Court nominations since 1789, 28 -- roughly 18 percent -- have not made it, compared with only a 4 percent failure rate for Cabinet nominations. (One hapless soul, Edwin M. Stanton, was nominated by Ulysses S. Grant in 1869 and was confirmed by the Senate, only to die before he could take office.) And although, in the early days of the republic, some nominees were confirmed on the same day their names were sent to the Senate, in recent years, the average confirmation period has stretched out to two or three months, as battles have grown ugly, energized and organized.
Early indications -- never mind that the nominee hasn't even been chosen yet -- are that this one's going to be contentious. This will be the first Democratic appointment to the Court since Bill Clinton nominated Justice Steven G. Breyer 15 years ago.
Make it clear that you are in charge of this process. In 1971, as deputy assistant to the president for Senate affairs, I helped usher through Richard Nixon's nomination of William Rehnquist for associate justice on the Supreme Court. Fifteen years later, Rehnquist asked me to assist him again with his confirmation as Chief Justice. He wasn't exactly enthusiastic about the process. "Why do we need to have a hearing?" he asked me. "I am a sitting justice. My opinions are there for the world and the Senate to see and I am not about to second guess any of them."
It took some convincing on my part to get him to appear before the Judiciary Committee -- even though he had no choice in the matter. In his 1971 confirmation as associate justice, the vote had been 68-26 in his favor. For chief justice it slipped a bit, to 65-33.
Between the announcement and the confirmation hearings, your nominee must not make any public appearances, meet with any media or interest groups, give any speeches or say anything substantive even to neighbors or relatives. All she must do is thank the president for his confidence in nominating her. All of her statements must take on the passion and enthusiasm of a commencement address. She must be inspiring and lofty, and at the same time say nothing at all. The goal is not just to be anodyne to throw off interest groups, but also to avoid prejudging any issues that may be coming before the court.