Glimpses of the Supreme Court nominating process, from White House insiders

Sunday, April 25, 2010

As President Obama ponders his nominee to succeed Justice John Paul Stevens on the Supreme Court, the following insider accounts -- drawn from oral history interviews conducted by scholars at the University of Virginia's Miller Center of Public Affairs -- provide a glimpse of the behind-the-scenes maneuvering that goes into filling a seat on the high court.

-- Russell L. Riley, chairman, Miller Center Presidential Oral History Program, University of Virginia

"I'm sitting in Washington running the Ford campaign. I get a phone call from Cardinal [Timothy] Manning. He says: 'The bishops are meeting over here at the Hilton Hotel. We'd like to have you come over and have lunch with us.' I go over. The monsignors are sitting around the table with the damn lawyers and the bishops. We have drinks and we have lunch. . . . Finally they said, 'The president has an appo intment to the Supreme Court, and we have an interest in it.' I said: 'I'm sure you have an interest in it. What are you talking about? . . . I'm not going to go to the president of the United States and tell him he's got to appoint so and so to the Supreme Court . . . but I'll suggest this to you. Why don't you give me a list of people that are acceptable to you?' I walked out of there with a list of three names. . . .

"I [later saw the president] and said: 'I met with the bishops of the Catholic Church today. They have an interest in your appointment to the Supreme Court.' [Ford] smiled. 'I bet they do.' I pulled out this list and said: 'They gave me this list. These are people who are acceptable to them. I'm not going to lobby, I'm just going to give you the list.' He looks at the list, puts it in his drawer. . . . Ten days later he appoints John Paul Stevens to the bench. He was on the list. To this day, the Catholic bishops think I'm God."

-- Stuart Spencer, consultant to President Gerald Ford's 1976 presidential campaign

"I think there's another reason you can't get good people, even when a judicial nomination is noncontroversial. The clearance process takes so long with the FBI and the IRS. . . . I've had these guys tell me, 'I want you to take my name off your nominations list 'cause it's killing my law practice.' I said, 'Man, you're going to be a judge.' 'Yes, but the FBI's going around, talking to my elementary school teacher, and they're asking, "What have you done?" ' You tell [the prospective nominee]: 'You can't tell anybody you're going to be nominated. You can't tell anybody, because it's not done yet.' And the FBI comes to town and starts asking around, and it ruins their law practice."

-- Frank Moore, President Jimmy Carter's congressional liaison

"In the course of our discussion with Reagan the first time we were talking about the candidates . . . we had talked about Scalia. Reagan had asked me whether Scalia was of Italian extraction. I think he used the word 'extraction,' and I said, 'Yes, he's of Italian extraction.' Reagan said, 'That's the man I want to nominate, so I want to meet him.' We brought Scalia in. . . . The president met Scalia, and he offered Scalia the job right on the spot, in about 15 minutes, very little ceremony here. Scalia accepted on the spot. He was delighted. That was it. . . .

"I think [Reagan] felt that it would be great to put an Italian American on the Supreme Court. He had all the usual American instincts: 'We don't have an Italian American on the court, so we ought to have one.' He really felt good about doing that. It wasn't principle so much as that kind of emotional commitment."

-- Peter Wallison, White House counsel

to President Ronald Reagan

"The Justice Department had first responsibility for generating a list, and then the White House and other agencies and departments would go over that list and vet it and establish his qualifications and the challenges, the opportunities and the dangers. Then it usually was whittled down to three names. The president was involved in this as we went along, but when it went to three names it was purely the president's decision. He made the decision. A lot of people had a lot of input, especially the attorney general and White House counsel. . . . But [Robert] Bork was the president's choice. It would serve no good purpose for me to say he was not my first choice -- I was not president. President Reagan wanted Bork, chose Bork and nominated Bork.

"It's unfortunate that Bork was not confirmed. He's not only a qualified jurist, but he's intellectually agile and a very talented legal scholar. For a lot of reasons, the nomination didn't sit well with a lot of people. . . . But the president had high confidence that he could move anything, whether it was a vote on an issue or a nomination or a treaty, or that he could convince a foreign leader or domestic leader of a particular point. He was supremely confident. He took account of the fact that there were big storm warnings about Bork ahead of time, but it was very Reagan-like to say, 'I want to do it anyway,' and he did. I don't recall that he ever had any regrets. He regretted that Bork lost, but it was not a devastating loss to him. I'm sure it was to Judge Bork. Reagan just picked up and went on."

-- Howard Baker, chief of staff to Reagan

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