Advice to President Barack Obama on Judicial Nominees

Today at The Heritage Foundation I had the opportunity to attend a panel hosted by former Attorney General Ed Meese. The panel was put in place to give President Barack Obama advice when he chooses his nominations for the Judicial system (the Supreme and Appellate courts). On the panel were Walter Dellinger, Stuart Taylor, and Jonathan Adler.

Dellinger had a bevy of advice for him. They were simple, yet important pieces of advice. The first piece was to select someone who is humble. He said that opinions would be far more persuasive if they were honest. Weighing both sides equally and walking us through the decision making process that lead them to whatever decision they made. Instead opinions are written explaining only their view and we are just supposed to accept it. He also said that Obama should pick judges that play nicely with others. If Justices can get other judges to be more bipartisan, it could help guide the Supreme Court as well as lower courts in future decisions.

Dellinger also stated that diversity is good, but Obama must understand the limits of it. He used the example of Roman-Catholic Judges. Once the third Roman-Catholic is appointed, it is no longer a story. There will always be a “Roman-Catholic seat” from then on. He also said that President Obama can look outside of the judicial world for qualified candidates. Justices do not necessarily have to be judges. Dellinger would nominate Lee Hamilton if he was nominating people. Dellinger wanted to hear a healthy debate on whether or not it is better to have Intellectuals or Practitioners on the Appellate Courts. Lastly, Dellinger stated that he should look for experience rather than someone who is trying to shape the future. He noted that there is a certain type of growth that stops when you are appointed to the bench.

Stuart Taylor echoed the need to nominate judges that had humility. Taylor also suggested that Obama appoint justices that were moderate. Not too far to the left, not too far to the right. He also noted that it will be difficult for Obama to reconcile campaign rhetoric (saying that he will appoint liberal judges) with votes and stances that he has taken. For example, he voted for controversial amendments to the Patriot Act, as well as wiretapping and a national fingerprint registry. A nominee that supports these initiatives will alienate his base, but a nominee that opposses these initiatives will erode his national security policies. (Dellinger disagreed with the notion that Obama had to support his base because he will never have a contested Democratic primary again).

Jonathan Adler was the last to speak. He commented that Obama will have power to shape the Court, but he will have much greater power to shape the appellate courts. He cited a Brookings study that stated that Obama will be able to nominate 1/3 of the Appellate Court judges in his first terms. Presidents usually appoint that many in two terms. Adler echoed humility, but also stressed the need to vett nominees, but at the same time, he cannot allow seats to sit empty. Renominating Bush appointees should also not be off the table. He weighed in on the question that Dellinger asked (whether or not it was better to have intellectuals or practitioners on the Appellate) saying it was better to have intellectuals on the Appellate. (He also applauded Mr. Meese and Reagan for making a conscience effort to get intellectuals like Bork on the Appellate).

The advice to the Senators confirming the Judges was to hang a big sign on the back wall that says : IT IS NOT ABOUT YOU!

Here is the video of the event

Todd Thurman

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