Unless she is found to be an ax murderer or a secret Red Sox fan living in the shadow of Yankee Stadium, Judge Sotomayor will likely be the newest member of the Supremes. That said, confirmations are never easy and often incredibly contentious—especially for U.S. Supreme Court seats, which come with lifetime tenure. Too often in the last two decades they have taken on many of the attributes of a political campaign (see Bork, Thomas, Souter, Roberts, and Alito) with attack ads, focus groups, polling, and other obscenely expensive, hyperventilated lobbying by the far left and the far right.
Tell the truth, always. Don’t embellish. Shoveling usually doesn't work. Senators can spot shoveling easily because of prior experience. Ask Bill Clinton.
As a veteran of some of these titanic battles—I was part of the shepherding team for Sandra Day O'Connor and then oversaw the nomination and confirmation of Anthony Kennedy in the Reagan White House, and served as the pro-bono Sherpa for President George H.W. Bush's two nominees, David Souter and Clarence Thomas—I’ve assembled a tried-and-true list that friends have dubbed Duberstein’s Dos and Don’ts. Following these Ten Commandments, Judge Sotomayor, and you’ll find a smoother pathway to Senate confirmation before the first Monday in October.
1. Personal stories are compelling every time. You have a great life story: Keep telling it. Clarence Thomas was the poor young man from Pinpoint, Georgia, who grew up without indoor plumbing on the wrong side of the tracks and made it big. My draft of his opening statement turned Bob Gates, the faceless bureaucrat trying to be CIA chief during the Bush 41 years, into the guy who arrived in town with all his belongings in the back of a beat-up Mustang convertible. America loves personal stories from humble beginnings. The South Bronx is a winner.
2. You will begin your senatorial courtesy calls almost immediately. Everyone will make nice and want a photo with you. Take it all in stride and do not answer any press questions in any senator's office or in the hallways. Reserve your comments for the Senate Judiciary Committee hearing. Button your lips until then.
3. Practice, practice, practice. Murder boards work if they prepare you for all the javelin-like questions. These intense mock hearings are not for softballs, but rather the inevitable knives. My Reagan White House colleagues reported to me that Judge Bork dismissed them as unnecessary preparation. That nomination, of course, ended badly. Our other nominees all flourished by anticipating the hard ones. The tougher the questions, the less painful the hearing.
4. Be prepared for the kitchen sink at the hearings. There will always be senators who come loaded for bear. That's their right: There are no ground rules to senatorial courtesy. Remember, this is political theater and there are usually no second acts. Except for Clarence Thomas. The Bush White House had 77 votes for Justice Thomas before Anita Hill's allegations. He ultimately was confirmed, 52-48.
5. The Constitution stops at the foot of Capitol Hill. There are no unfair questions—just bad answers. Judge Bork became his own worst witness during his testimony by playing to the arrogant, elitist stereotype the opposition had created.
6. Tell the truth, always. Don’t embellish. Shoveling usually doesn't work. Senators can spot shoveling easily because of prior experience. Ask Bill Clinton. The shorter the answer, the better.
7. Senators welcome mea culpas in your oral testimony. So do the American people, who are the real audience. Use mea culpas wisely. “I am sorry.” “I blew it.’ “I made a mistake.” Politicians have a hard time saying these words—thus the American public will find it refreshing when you do.
8. Pause for seven seconds before you answer any question. Ask yourself where the senator is going on his or her question. How will you answer play in the hearing room, on TV, especially cable, in the newspapers and blogs? Then answer carefully—but don’t violate my Sixth Commandent.
9. Have an answer for the one question you didn't want to be asked—because you will undoubtedly be asked that question. Nelson Rockefeller, during his vice presidential confirmation (appointed to replace Gerald Ford, he remains the only VP who’s had to go through this), famously did not want to answer this question: How much he was worth? Of course, the question was asked and, rather than dance around it, which he could have with preparation, the world learned that it wasn’t as much as they thought. Embarrassing!
10. Senators usually depart when the cameras are turned off, but remember: The microphone will still be on. The mike caught me once complaining to Joe Biden, then-chairman of the Judiciary Committee, why he was letting Arlen Specter go another round with David Souter when it was obvious the hearing (and confirmation fight) was over. So stay on the edge of your chair and do not relax. Leave without answering shouted press questions.
And here’s a bonus, my 11th commandment: You have the best lobbyist in the world at your disposal....the president of the United States, and a popular one at that. Use the president's influence judiciously—but use it.
If you're as truly extraordinary as President Obama advertises and follow these lessons from your predecessors, you'll be on the court on the first Monday in October and throwing out the first pitch at the new Yankee Stadium for the playoffs.
Kenneth Duberstein, Ronald Reagan’s White House chief of staff, is now chairman of the Duberstein Group.