From Carswell to Kagan: Learning the hard way to vet court nominees

A few weeks after President Nixon selected G. Harrold Carswell for the Supreme Court, the White House learned, via newspaper stories, that the Florida judge had given speeches endorsing racial segregation and had worked to keep a local golf course for whites only.

Moreover, an unusually high number of his rulings had been reversed on appeal. Nixon’s nominee was rejected by the Senate in 1970.

“Carswell was a disaster for us,” recalled former White House Counsel John Dean, who said little effort was made by officials to check his background. “The news media did the vetting of our nominee.”

These days, by contrast, Supreme Court nominees are selected only after teams of lawyers spend weeks carefully compiling thick binders full of information on every aspect of their lives and their work. Their writings and opinions are read and reread. FBI agents interview their friends and co-workers.

Then the finalists are interviewed in private, where they are asked the “sex, drugs and rock-and-roll” questions, as one advisor put it. The purpose of the interview is made clear: If you have done anything — ever — that could prove embarrassing if it became public, we want to know about it now.

It’s been nearly three weeks since President Obama announced he was choosing Solicitor General Elena Kagan for the Supreme Court. And to no one’s surprise, there have been no startling revelations that could derail her confirmation.

“I’d be shocked if there were any surprises,” said William P. Marshall, a University of North Carolina law professor and a former White House lawyer for President Clinton. “She is a careful, judicious person. And she’s been in the public eye for 15 years.”

In addition to thorough White House vetting, Marshall points to other changes in recent decades that have helped take the surprise factor out of nomination fights.

“There are interest groups in D.C. on the left and right that are completely focused on these nominations. And you have the 24-hour news cycle,” he said. “As soon as the ‘short list’ goes public, it flushes out any reaction to the nominees.”

And Kagan had gone through a Senate confirmation just last year to be solicitor general. “That also helps to eliminate surprises,” Marshall said.

If Kagan goes through Senate confirmation largely unscathed, she will be the sixth justice in a row to do so. Justice Ruth Bader Ginsburg in 1993, Justice Stephen G. Breyer in 1994, Chief Justice John G. Roberts Jr. in 2005, Justice Samuel A. Alito in 2006 and Justice Sonia Sotomayor in 2009 were confirmed without surprises.

The one exception to the recent trend came in October 2005, when President George W. Bush surprised his own staff by nominating his longtime personal lawyer, Harriet E. Miers, for the Supreme Court. Stunned, conservative activists rebelled and said they did not know enough about Miers to support her. Chastened, Bush withdrew the nomination and turned to Alito, who had been thoroughly vetted by Bush’s legal team.

What happened with Miers highlights the particular perils to the president of a surprise nominee. In 1987, shortly after Judge Robert Bork had been rejected by the Senate, President Reagan announced a surprise as his replacement: Douglas Ginsburg, a 41-year old law professor and judge who had worked with many of Reagan’s top legal advisors.

A few days later, news reports from Boston revealed something Reagan’s aides had overlooked: that Ginsburg had regularly smoked marijuana during the years he taught law at Harvard.

“That took all of us by surprise,” said Charles Cooper, a Reagan administration lawyer. “The problem was that Doug was known to all of us, so maybe the scrutiny was more relaxed in his case.”

In 1991, President George H.W. Bush nominated Judge Clarence Thomas, who was nearly derailed on the eve of his confirmation vote by the surprise allegations of sexual harassment lodged by one of his former aides.

Despite the safeguards, White House advisors can never know for sure whether someone, or some hidden memo, might emerge to damage the nominee’s reputation.

“You have to prepare for the worst,” said Rachel Brand, who worked in the George W. Bush administration on behalf of Roberts and Alito. “We had a high degree of confidence they would be confirmed, but it’s a stressful time, and you take nothing for granted.”

Still, the careful advance scrutiny of Supreme Court nominees removes much of the risk that the White House will be caught off guard by a surprise revelation.

“The process today just could not yield a Carswell,” Cooper said.

david.savage@latimes.com