ACS President Phil Brest Speaks on Judicial Nominations
Phil Brest, president of the American Constitution Society for Law and Policy (ACS), spoke at ACS’s UVA chapter on Tuesday. The talk was entitled “Lessons Learned: How Judicial Decisions Shape Today's Democracy.” Brest previously worked for Senators Dianne Feinstein and Dick Durbin on the Senate Judiciary Committee before joining the Office of White House Counsel under President Biden. His new role as ACS head partly reflects the organization’s commitment to getting serious about nominations.
Brest describes the judicial nomination process as “the most partisan, the most divisive, and the most consequential function of the modern Senate.” This fact stems from today’s high partisan competition and the increasing role of judges in determining national policy. Brest acknowledged that conservatives would likely trace partisan nominations to the Robert Bork confirmation hearings or other actions by Senate Democrats. But he said the data show that Senate Republicans’ treatment of President Obama’s nominees caused the present dynamic. Under Senator Mitch McConnell, the Republicans committed to “accomplishing judicially what [they] could not legislatively.”
There is an asymmetry between the parties, Brest said. Senate Democrats continued to view Congress’s main job as legislating rather than punting to the judiciary, did not understand the stakes, or just lacked the discipline needed to match their counterparts. The biggest lesson is that Democrats need to become more “intentional” about nominations—a change which is now occurring.
Brest also spoke on the technical aspects of judicial nomination. The Constitution says only that the President must nominate judges with the advice and consent of the Senate. Instead, the process is heavily shaped by unwritten norms, political alignment between the branches, and the specifics of the judgeship. For Supreme Court justices, of course, “the White House holds the reins.” For district court judges, the blue slip process gives a veto to Senators from the state in which the district is located. That means the nominee will always be acceptable to the Senators, if not chosen by them outright. Ultimately, the process depends on whether the individual state and the whole Senate of the same party as the President, but idiosyncratic personal relationships between Senators play a major role as well, especially in the few remaining purple states.
Of course, judges must also be vetted. According to Brest, the Biden administration never asked directly about ideology. “We loved it when people would offer up, ‘Don’t worry, I’m a progressive.’ . . . But we never asked.” Instead, they always asked “who the candidate considered to be a judicial hero, instances in which the candidate felt bound by precedent but otherwise would have ruled differently, and what the candidate hoped people would say about her after a decade on the bench.”1 Assuming nominees pass this first stage, there is an extensive background check, and the White House holds a series of moot confirmation hearings. Brest described the moots as “the most fun part of the process” but said, unlike some colleagues, he never indulged in imitating a Senator’s accent.
Brest concluded by giving some advice for students interested in someday becoming a judge. First, he said, there is no one path to becoming a judge. Second, and by contrast, you can do everything right and not be nominated. So students shouldn’t organize their careers in the hope of eventually being appointed. Finally, he gave some advice: Be mindful of social media posts, follow speed limits, watch your drug usage, maintain a good reputation within the bar, and have sufficient ties to the district you’re interested in. And if you are nominated, prepare for a “profoundly unpleasant process.”
Many students asked about the future of the process. In the short term, Brest said that the Democrats will almost certainly block Republican nominees, if only due to voter preferences. Brest asked students to imagine a scenario in which Democrats take control of the Senate, Justice Alito retires, and President Trump seeks to replace him. If Democrats were to cooperate, Brest said, “I honestly think you might see something similar” to January 6th. In the long term, there are some reforms that might help lower the partisan competition, including reforming the blue slip process and expanding lower courts. But neither party is going to be a first mover, so for the foreseeable future, we should expect all but the most truly inoffensive nominations to be essentially party-line votes.
From his front-row seats in the Senate and the White House and his current role at ACS, Brest is well-positioned to explain the nomination process. The impression he gave was of a dysfunctional Congress where significant legislation is nearly impossible, and the two parties match each other in fighting over the judges who will make the nation’s policy.
Author: Jason Vanger ’27, nnk2gn@virginia.edu