Failed judicial nominees: It’s ‘no fun’

By Robin Bravender | 03/10/2016 01:25 PM EST

When former Interior Department lawyer William Myers was picked by President George W. Bush for a federal appeals court seat, government investigators grilled his family and friends about his personal habits and finances. He was sharply criticized by hostile Senate Democrats during two grueling confirmation hearings.

When former Interior Department lawyer William Myers was picked by President George W. Bush for a federal appeals court seat, government investigators grilled his family and friends about his personal habits and finances. He was sharply criticized by hostile Senate Democrats during two grueling confirmation hearings.

His nomination languished for more than three years. He never got the job.

Now, another even more contentious partisan brawl over a judicial nominee is playing out on Capitol Hill. A top Senate Republican has likened President Obama’s forthcoming Supreme Court nominee to a piñata, suggesting that the nominee should brace for a political pummeling.


Myers, now an attorney at Holland & Hart LLP in Boise, Idaho, gets it. "I understand the analogy," he said. "Everything you’ve ever done, everywhere you’ve ever lived, every job you’ve ever had is all subject to microscopic scrutiny."

That’s what lies ahead for Obama’s nominee. The president’s pick will undergo invasive background checks and investigations by the media, and will be declared Public Enemy No. 1 by the administration’s foes. And — like some previous nominees to the Supreme Court and other judicial seats — the nominee might walk away empty-handed.

"[I]t was no fun being a nominee in a partisan atmosphere," said Lillian BeVier, who was nominated by President George H.W. Bush in 1991 to sit on the 4th U.S. Circuit Court of Appeals, based in Richmond, Va.

"I was a pawn in someone else’s game, a game which had next to nothing to do with whether I was qualified," BeVier said this week in an email. "Joe Biden, head of the Judiciary Committee at the time, refused even to hold a hearing on my nomination" and many others, she said. "All these nominations (there were at least 50 of them as I recall) lapsed upon the election of Bill Clinton."

Myers, who had served as Interior’s solicitor under the George W. Bush administration, was nominated in 2003 for a seat on the San Francisco-based 9th U.S. Circuit Court of Appeals. The nomination was panned by green groups and Democrats; Sen. Patrick Leahy (D-Vt.) called Myers the most "anti-environmental" judicial nominee he had seen and an "outspoken antagonist of long-established environmental protections." Myers pledged to fairly review the law as a judge, but the Democrats didn’t budge.

While the process played out, Myers said, he underwent background checks by the White House, the FBI and the Senate Judiciary Committee.

"Basically, the FBI wants to know if there’s anything in your past that would make you unfit to hold office or embarrass the president," he said. "They will ask your colleagues, friends and neighbors all kinds of questions, like financial and personal habits and lifestyle habits, drug or alcohol abuse, pretty much anything you can think of."

All of it can "take a toll on friends and family that care about you," he added.

Charles Stack, a former Florida personal injury lawyer, was nominated by President Clinton in 1995 for a seat on the 11th U.S. Circuit Court of Appeals, based in Atlanta. The Senate held a hearing over his nomination, but Stack drew fire from the right, including from then-Sen. Bob Dole (R-Kan.), who was closing in on the Republican presidential nomination. Dole questioned Stack’s qualifications and slammed Stack’s fundraising for Clinton’s campaign. Stack ultimately withdrew his nomination.

The process for an appeals court nominee "is probably identical, only not quite as politically charged" as a Supreme Court confirmation, said Stack, who is now retired. But even an appeals court nomination comes with "plenty of politics," he said.

Stack said of the partisan strife that engulfed his nomination, "It was a pretty unpleasant trip, really."

His career took a hit while he waited in nomination limbo, he recalled. "Not only did I put my career on hold, but many of my clients put my career on hold, too." He had a prospective client in what "was going to be a huge case," but she went with another lawyer because she thought Stack would need to abandon the case when he was appointed to the bench. "It’s a very frustrating experience," Stack said. "I lost a tremendous amount of business."

Obama is reportedly considering a batch of sitting federal judges for the job (see related story). While they wouldn’t lose business like lawyers in private practice whose futures would be uncertain, a nomination could force them to recuse themselves from pending cases and could affect which cases they would ultimately hear if confirmed to the high court.

‘Can’t take these things personally’

The political climate and uncertainties about confirmation could dissuade some would-be Obama picks from accepting the nomination in the first place. But despite some major drawbacks, former judicial nominees say it’s tough to turn down the president, and they don’t regret going through the process.

"I’m happy to have gone through it. I don’t think I’m any the worse for wear," said Steve Matthews, an attorney at Haynsworth Sinkler Boyd who was nominated by President George W. Bush to the 4th Circuit in Richmond. "It was a compliment and an honor just to be thought of and would have been great fun to serve."

Matthews was nominated in 2007 but was criticized by Democrats and liberal groups and never received a confirmation hearing.

Myers doesn’t regret it, either. "I was willing to serve," he said. "That is why people go through this process, because they want to serve their country." And for those that are ultimately confirmed, he added, "that pain and suffering dissipates rather quickly."

He suggested that a Supreme Court nominee shouldn’t be dissuaded by the likely scrutiny and Republicans’ avowal to block any nominee. "Assuming they don’t have anything untoward in their background that can be uncovered … then they should go ahead and have their name submitted as the nominee and then hope that a Democratic presidential candidate succeeds so they can be renominated and get a vote early next year," he said.

Stack said, "There’s a tremendous amount of honor and recognition to be received for a nomination like that. … I think it’s going to be hard for someone to turn down a nomination."

Asked what advice he’d give to an Obama nominee, Stack said, "You’ve got to engage in the politics very heavily."

And it certainly helps to have a thick skin, he added. "You can’t take these things personally."