Elena Kagan (Flickr Creative Commons photo by dsearls)
Justice Department officials are pushing back on reports that the White House has hijacked the confirmation of Supreme Court nominee Elena Kagan.
While the department often takes the lead on vetting and preparing judicial nominees, the White House has long steered Supreme Court picks though the confirmation process, said a senior Justice Department official.
“It’s not true that it’s changed,” the official said. “It’s the White House’s job with some input and help from the Justice Department.”
The division of labor in a Supreme Court nomination is a sensitive subject; such nominations are rare, receive gobs of attention and have potential to fuel the careers of individuals who work on them.
The department’s level of involvement has varied, reaching what was perhaps a high point in the Bush administration.
The department hosted mock confirmation hearings for Supreme Court nominees John Roberts Jr. and Samuel Alito Jr. in a fourth-floor conference room. The head of the department’s Office of Legal Policy a the time, Rachel Brand, ran the sessions, known as murder boards. The office was also tasked with document production and round-the-clock press monitoring.
Kagan’s murder boards are expected to take place in the White House, like those of President Barack Obama’s first nominee to the Supreme Court, Justice Sonia Sotomayor. Justice Department officials will participate.
Christopher Schroeder (DOJ)
There are other, subtle differences that mark a shift in the department’s role from the previous administration. For instance, Brand held background briefings with reporters immediately following the nominations of Roberts and Alito. Ronald Klain, chief of staff to Vice President Joseph Biden, headed the press briefing after Kagan’s nomination this month.
In the Clinton administration, all the preparation for nomination of Justice Ruth Bader Ginsburg took place at the White House, while the work on the nomination of Justice Stephen Breyer was divided between the Justice Department and the White House.
Justice Department spokeswoman Tracy Schmaler disputed the notion that the Justice Department had lost ground on Supreme Court nominations, and she pointed out that the Office of Legal Policy’s top official, Christopher Schroeder, wasn’t confirmed until late April.
According to one Justice Department lawyer, the office lost some credibility with the White House after Republicans seized on holes in the Senate questionnaire of a controversial nominee to the U.S. Court of Appeals for the 9th Circuit.
Goodwin Liu (Berkeley Law)
The nominee, Berkeley law professor Goodwin Liu, was forced to supplement his nomination materials four times. Republicans reacted with outrage, accusing Liu of omitting publications and speeches to conceal his views. White House officials fumed.
The Senate Judiciary Committee endorsed Liu’s nomination, along party lines, earlier this month.
The lawyer said that some in OLP feel as though the Justice Department’s limited involvement in the Kagan nomination is punishment for the Liu omissions and that the office has come under increased supervision by the Office of the Associate Attorney General.
The senior Justice official said both assertions were false. OLP is playing the same supporting role in the Kagan nomination as it did in Sotomayor’s last year and continues to compile questionnaires and prep nominees to the lower federal courts, the official said.
The Liu paperwork did not lead to more oversight of the office, the official said, adding that the Associate’s involvement in nominations work fluctuates with the workload.
