As speculation over who President Obama will choose to replace Supreme Court Justice John Paul Stevens heats up, the likely truth, according to lawyer and former White House deputy counsel under George W. Bush, Bill Burck, is that the president has already had a nominee ready for some time. Burck was deputy staff secretary during the nomination processes of both Chief Justice John Roberts and Justice Samuel Alito, so he knows the inside details about how nominees are chosen and prepped. He recently chatted with U.S. News about murder boards, deal-making, and what makes the ideal Supreme Court candidate. [See the members of the Supreme Court.]
How does a president decide on a nominee?
The process is pretty professionalized. I would imagine that President Obama started having his people in the White House counsel's office start putting together a list probably very close to the time he first started, when he took office in the beginning of 2009. You begin the process well in advance of an opening so that you're ready to vet and to explain to the president the options he has and let him make a reasoned and informed decision. There are people who are obvious candidates to consider, usually federal appellate judges who have made a name for themselves as generally well-known and well-regarded across the country.
How do you prepare a nominee for the barrage of questions?
Well, first of all the nominee spends 100 percent of their time—110 percent, really—preparing. They re-read everything that they've written—everything from what they wrote in high school to what they wrote yesterday—and they think about all the major issues that are confronting the Supreme Court today. Then the White House generally will find a group of people drawn from the White House, the Department of Justice, other parts of the executive branch, outside lawyers, academics who will then start quizzing the nominee in the murder boards. Generally, there are several different rounds of the murder boards that culminate in either one or two or more formal settings where people who are participating pretend to be members of the Senate Judiciary Committee and will then each have a role as chairman, the ranking member, etc.
How do you assemble a murder board?
You try and find people who are subject matter experts. You also want to find people who are able and adept at asking questions and who will not shy away from being aggressive and being controversial with the nominee so that they get a taste of what it might really be like when they're actually there. You don't want to have a group of people who are coddling the nominee and making them think that they're the smartest and nicest people in the world and everyone loves them.
What does it take for a nominee to be confirmed?
The most important thing is the qualifications that the person has. It's an extremely hard job. It's not just in terms of your intellect, you also have to be very good at dealing with your fellow colleagues, you have to be able to think ahead, you have to think about the implications of the legal questions that you're answering. I think how appealing someone is is very important. The more irascible, or the more difficult somebody is, the harder it will be. When you're nominated for the Supreme Court, it puts the bull's eye on you, so if you had been someone who was unpleasant to your underlings or your clerks or your colleagues over time, that will come out, and that could be a difficult problem to overcome if people think you don't have what you'd call judicial temperament.
What sort of deal making goes on behind the scenes during the confirmation process?
I will tell you, not a lot. It's not like the other judicial positions. The president will nominate somebody. And then, when they're up there, it's such an important position that there's not a lot of horse trading that typically goes on, certainly not compared to other things on the Hill.
What are some tips for getting a nominee through the Senate?
Be extremely well-prepared before the nomination opens up to make sure that you've got a wide-range of people that have a wide-range of experiences. That means doing your homework. You don't want any surprises. You want to know this person inside and out. Even if there's certain things about the person's background that may not be ideal, knowing beforehand allows you to do something incredibly important in Washington, which is to tell people about it before they hear it from the press. So, you communicate with the senators, you communicate with their staff, you understand what the issue is, you explain it to them, you tell them why, nevertheless, the president decided to make this nomination. And that goes an enormous way toward making it not an issue. Surprise is the enemy of a nominee.