Assistant Attorney General Speaks on the Judicial Nomination Process

BY TORY JACKSON

Last Wednesday, in an event sponsored by the HLS Republicans, Rachel Brand ’98, Assistant Attorney General for the Office of Legal Policy (OLP), talked to 40 students about the judicial nomination process. Brand has previously served as Associate Counsel to the President and as law clerk to Supreme Court Justice Anthony Kennedy and to then-Massachusetts Supreme Judicial Court Justice Charles Fried. While at HLS, Brand was Deputy Editor-in-Chief of the Harvard Journal of Law & Public Policy and Vice President of the HLS Republicans.

In her current position, Brand played an integral role in the confirmations of Chief Justice John Roberts and Justice Samuel Alito. While the OLP performs a broad array of functions, she said working on judicial nominations is especially gratifying because the Bush administration takes them so seriously.

Brand’s principal duty during the confirmations was to prepare nominees for the process, including setting up and participating in moot question-and-answer sessions. Roberts and Alito each participated in about fifteen sessions, one of which was meant to resemble the sometimes marathon hearings in the Senate Judiciary Committee. Brand and her colleagues attempted to predict the questions Senators might ask and to help ensure the nominee would be comfortable with the format of the hearings. Brand rejected the contention that nominees are coached on what to say by the administration, noting that the nominees’ answers were very much their own. Indeed, she somewhat lightheartedly pointed out that experienced jurists like Roberts and Alito could care less what she thinks about the Commerce Clause.

The OLP staff is also responsible for becoming expert on a nominee’s record, a daunting task given the immense number of documents. Justice Alito, for example, worked on more than 5,000 cases as an appellate judge, all of which had to be examined by the OLP. While Chief Justice Roberts had a much smaller judicial record, OLP still examined 75,000 pages of material from his days in the Reagan and Bush administrations. Brand noted that the OLP, which is a relatively small office that does not litigate, found itself dealing with what felt much like the discovery process in modern litigation.

The OLP also tries to ensure that a nominee’s record is not mischaracterized in the media. Brand pointed out that working with the media is especially challenging because most reporters are not lawyers and have limited time or space in which to discuss often complex legal issues. She noted the futility of using words like “jurisdiction” or “summary judgment” when talking with reporters.

Especially frustrating for Brand was the media’s desire to simply count how many times then-Judge Alito ruled for the plaintiff or defendant as if that fact revealed anything about him as a judge or the issues in play in a given case. And when they did count, some news organizations failed to do so correctly. Knight-Ridder, for example, repeatedly reported that Alito never ruled in favor of a black plaintiff, a claim which Brand pointed out was demonstrably false.

Brand commented that the judicial nomination process sometimes mirrors a political campaign, as the OLP constantly responds to critics while also making sure the administration’s message is heard. Brand also spoke of the value of humanizing a nominee and said it was helpful that both Roberts and Alito seemed like decent guys with nice families. Brand pointed out that young Jack Roberts helped immensely in humanizing his father as he danced around during a White House press conference, doing his best impression of Spiderman.

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