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Critiques of the Judiciary
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D.C. attorney Glen Nager had ambitions of becoming a judge in the U.S. Court of Appeals for the D.C. Circuit — a lifetime appointment — and was eager to have the president nominate him for the position. To assist his behind-the-scenes campaign for the judgeship, Nager enlisted the help of well-connected lobbyist Jack Abramoff to direct the attention of decision-makers to his candidacy. He never anticipated that Abramoff would be convicted and sent to prison for other activities he was engaged in at the time (bank fraud, tax evasion, conspiracy to bribe public officials) to which he pleaded guilty.
Even without the help of Jack Abramoff, by most accounts Glen Nager was a strong candidate for a judgeship on what is widely seen as the nation's second most important court.
Having argued his first Supreme Court case as a 28-year-old assistant to Reagan-era Solicitor General Charles Fried, Nager has long been regarded as something of a legal prodigy. By 2001, 14 years after that first argument, Nager had frequently appeared before the Court and the nation's other top appeals courts. In private practice, he quickly rose through the ranks of the appellate group at Jones Day, one of the world's largest law firms. His friends and acquaintances included former Supreme Court Justice Sandra Day O'Connor, noted conservative appellate Judge Laurence Silberman, and Michael Carvin, a top Republican lawyer who represented then-presidential candidate George W. Bush in Bush v. Gore.
Nager now chairs the appellate group at Jones Day. But back in early 2001, Nager had his sights set on another job. He wanted the president to nominate him to a lifetime spot on the U.S. Court of Appeals for the D.C. Circuit, a 10-judge court known as something of a training ground for Supreme Court nominees. (Four of the current nine justices once sat on the court.)
Openly campaigning for a judicial nomination is seen as unseemly. But behind the scenes, competition is intense. Potential nominees have been known to send four-inch-thick binders of information about themselves; and at least one applicant in recent years has sent the Justice Department a videotape. "Getting the opportunity is a bit like being struck by lightning," says Eleanor Acheson, who headed the Justice Department office responsible for vetting judges under President Bill Clinton. "It's just very hard."
To increase his chances, in early 2001 Nager turned to Abramoff, then a lobbyist at Greenberg Traurig, for help with an enterprise Nager referred to as "The Project." That year, Nager and Abramoff traded a series of e-mails about Nager's ultimately unsuccessful campaign to land a spot on the federal bench.
"[I]t seems to me that the goal here is to make the case that I should be the next court of appeals nominee," Nager wrote to Abramoff in early March. "The point is that I have the best chance of going through."
The e-mails indicate that Abramoff lobbied White House political adviser Karl Rove on Nager's behalf and that Nager repeatedly sought Abramoff's advice on strategy. The messages became public this fall, when the House Government Reform Committee released a report on Abramoff and his associates, documenting nearly 500 contacts with the White House on a variety of matters. The report was based largely on thousands of pages of e-mail correspondence by Abramoff and his colleagues, turned over to the committee by Greenberg Traurig.
"Nager was a frequent e-mailer to Abramoff," notes the report. "His e-mail was sometimes lengthy."
To be sure, the messages provide no evidence of any illegal or unethical activity by Nager. But the exchanges offer a rare glimpse into one man's aggressive effort to garner a top federal judgeship. They also raise questions about what — if anything — Abramoff expected in return for helping Nager. Nager declined to comment for this article, as did Abramoff's lawyer, Abbe Lowell. Abramoff himself entered a federal penitentiary in Cumberland, Md., last week to begin serving a six-year sentence after pleading guilty earlier this year to conspiracy and fraud charges in Miami over the purchase of SunCruz Casinos, a Florida gambling-boat company. Abramoff has also pleaded guilty to conspiracy, mail fraud, and tax evasion charges in Washington, D.C., and continues to cooperate with federal prosecutors in their ongoing probe of his lobbying contacts with congressional members and other federal officials.
SUPREME DREAMS
Friends of Nager say he knew Abramoff through Nager's wife, Amy Berger, a former aide to Sen. Jay Rockefeller (D-W.Va.). Berger had worked with Abramoff in the late 1990s at the law firm Preston Gates Ellis & Rouvelas Meeds. "The connection is strictly social through his wife, who worked with Jack," says Carvin, a partner of Nager's at Jones Day who says Abramoff played a "minor" role in the effort to help Nager get a judgeship.
In February 2001, Nager sent Abramoff a long e-mail with a subject line reading, "The Project." "Amy says that you are off for a 2 week trip," Nager wrote, "
... presumably you will be picking up e-mails."In the e-mail, Nager provided Abramoff with a detailed description of his efforts to land a nomination and seeks his advice on a number of strategic points. "Should I be asking Charles Fried to send a letter?" Nager wrote.
"Yes," Abramoff responded.
Nager also outlined a plan to use an acquaintance to get inside information on White House deliberations via the deputy White House counsel at the time, Timothy Flanigan.
"I talked to my friend [Reagan-era DOJ official] Roger Clegg.
... He knows the new Deputy White House counsel pretty well, as well as others in [the] White House counsel's office. He is going to try to gather intelligence for us about who within that office is responsible on a day to day basis for putting files together," Nager wrote. "He is fully behind the effort, and at the appropriate time will organize a bunch of former Reagan and Bush Sr. Administration DOJ and White House lawyers behind the effort. For now, however, he will just do intelligence work, feed me the information, and await requests for action from me. (And I of course will wait for guidance from you.)""Excellent," Abramoff responded.
It's unclear how well the intelligence-gathering plan worked. Flanigan says it was not his practice "to talk to anybody outside the White House about internal discussions regarding judicial nominees."
"I don't recall that I had any discussions with [Clegg] about Glen Nager," says Flanigan, now the general counsel at Tyco, who last year withdrew his nomination to a top DOJ post amid criticism from Senate Democrats over his own connections to Abramoff.
Clegg, a former DOJ official and now the general counsel of the Center for Equal Opportunity, a right-leaning think tank, says he did help Nager with his attempt to win a nomination, but he says he had no knowledge that Abramoff was also involved.
Even if Nager's supporters had been aware of his ties to Abramoff, it would not necessarily have been cause for much concern. At that time, Abramoff was still a respected and powerful Washington lobbyist.
But in hindsight, it's clear that by the winter of 2001, the seeds of the scandal that would bring down Abramoff and shock K Street had already been sown. On Feb. 6 of that year, Konstantinos Boulis, the founder of SunCruz Casinos, was gunned down in broad daylight in Fort Lauderdale, Fla., just months after Abramoff and business partner Adam Kidan had purchased the gambling-boat company from Boulis. (Kidan has also pleaded guilty to conspiracy and fraud and is expected to testify as a witness in the mob-related case against the three men charged with Boulis' killing). And just eight months earlier, Abramoff and two of his clients had helped facilitate a $70,000 trip to Britain for then-House Majority Leader Tom DeLay (R-Texas) and five others.
On March 6, 2001, Abramoff had a scheduled meeting with Rove. Among the seven items on Abramoff's agenda, according to documents released by the House committee: a line reading "Florida — Bush anti-cruise" (an apparent reference to Florida Gov. Jeb Bush's past support for restrictions on gambling cruises); a "pro-free market Indian agenda" that would presumably benefit Abramoff's Native American clients; and Glen Nager.
That day, Nager wrote to Abramoff about a conversation he'd had with Viet Dinh, then the nominee to be the assistant attorney general of the Justice Department's Office of Legal Policy, which reviews judicial nominees. "He was very supportive," Nager wrote. "He was glad to get briefed on the situation. He obviously is not at this point up to speed on these issues."
Dinh, according to the e-mail, told Nager that the first open seat on the D.C. Circuit was likely to go to John Roberts Jr., then an appellate lawyer at Hogan & Hartson. Dinh also told him that it was unclear if there would be another seat on the court open. "Interestingly, after we had talked for a while, he insisted upon cutting the conversation off. He said that he appreciated getting the lay of the land and that to protect both of us he did not feel the conversation should go further. I indicated that I agreed with him completely," Nager wrote to Abramoff in the March 6 e-mail. (Dinh, now a professor at Georgetown University Law Center, says he has no recollection of the conversation.)
Abramoff wrote back to Nager that evening, giving a report on his meeting with Rove and referencing the hoped-for efforts of former Christian Coalition Director Ralph Reed on Nager's behalf. "Great meeting with Karl," Abramoff wrote. "
... I told him that you should be on the Court of Appeals and that you would be perfect to move up to the Supremes in the second term.""He did not commit to do anything, but made some notes on your resume," Abramoff continued, later in the message. "I think he'll poke into it and we'll hear more soon."
RUSHING ROVE
As the administration moved toward a decision on whom to nominate, Nager continued to press Abramoff for assistance. The e-mails indicate Abramoff tried to reach Rove during the first week of April 2001 to again push Nager's case but was unsuccessful. Nager, at this point, wanted to make sure the White House knew he had the support of Judge Laurence Silberman, a prominent conservative appellate judge on the D.C. Circuit whose former clerks had gone on to serve in a number of high-level posts in the Bush administration.
One possible conduit for this information was Susan Ralston, Rove's executive assistant, who had previously worked for Abramoff. (Ralston resigned after the publication of the House report this fall, which documented her accepting expensive sports tickets from Abramoff and giving the lobbyist internal White House information.)
"What do you think of asking Susan to mention that she knows me and that she knows that Judge Silberman is very interested in discussing me with anyone who will call him (since, under judicial ethics rules, he cannot initiate the call)?" Nager wrote to Abramoff on April 4. "
... I wonder whether we can enlist her."Nager also had other news to share with Abramoff.
"On this subject, [Nager's Jones Day partner] Mike Carvin talked to Tim Flannigan [sic], [then-White House counsel Alberto] Gonzales' deputy, on Friday. Flannigan said that, while there are definitely other contenders, 'he is looking very good,' " Nager wrote. "Carvin interpreted that comment as meaning that I have Gonzales [sic] support, and the question is simply whether other political forces — such as the proponents of racial and gender quotas, or those who want to reward persons who worked on the campaign — trump his choice. Carvin's comment is consistent with Silberman's information that I was ahead on merits, ideology and interview, but exposed on politics; and his comment is consistent with Silberman's admonition that now is the time to get some 'juice' with Rove."
"Let me feel out Susan," Abramoff responded. "She has been understandably reticent to advocate anything to Karl, but let me try."
Neither Flanigan nor Carvin say they remember the conversation Nager references. But "it hardly took a genius to figure out" that race and gender would factor into the selection process, Carvin says.
Silberman, whose wife worked with Nager from 1995 to 2000 when Nager was on the board of the Office of Compliance, which oversees congressional labor practices, says he often gives advice and information to friends and former clerks seeking appointments. "I don't recall mentioning Rove" to Nager, says Silberman, who took senior status in 2000. "I certainly did indicate to him that he did have to have political support."
On April 10, six days after the e-mail exchange about Carvin's discussion with Flanigan, Abramoff finally reached Rove, though without the results he and Nager had been hoping for.
"He did not commit," Abramoff wrote to Nager. "But said he would call over and see where it was. He is not one to commit, I think, but at least he knows that this is hyper urgent for me."
On May 9 the White House announced its two nominations for the D.C. Circuit: Roberts and Miguel Estrada, a Honduras-born appellate lawyer in the Washington office of Gibson, Dunn & Crutcher.
LOWERING EXPECTATIONS
Roberts, of course, would go on to the D.C. Circuit and then the Supreme Court, while Estrada would eventually withdraw his nomination in 2003 after a battle in the Senate. By December 2001, although Nager hadn't given up hope of a federal judgeship, he'd set his sights slightly lower than the D.C. Circuit: an appointment on the U.S. District Court for the District of Columbia. Though the White House had already nominated three new judges to the court, Judge Thomas Penfield Jackson, the judge who had most famously presided over the Microsoft antitrust case from 1998 to 2000, was retiring, and Nager hoped to replace him as Bush's fourth nomination to the court.
"I have it on very solid source that I am the DOJ candidate and that [then-Attorney General John] Ashcroft is firmly behind me," Nager wrote to Abramoff. "I also have it on somewhat less certain source that Gonzales is arguing for a female, since the first three district court nominees have been male. (As you recall, they added a black male [an apparent reference to Judge Reggie Walton] to bump me in the first go round). Apparently, [it] is unclear how it will shake out, and Rove may be the determining factor. Anything that you can do with him
... might make a big difference."If Abramoff did try to help Nager again, it doesn't appear to have been successful. And Nager's assessment of Gonzales' preference for a female could well have been accurate. In August 2002, the nomination for Jackson's spot went to Rosemary Collyer, a longtime labor and employment lawyer at the Washington law firm of Crowell & Moring.
Though Nager hasn't won a judicial spot, his career has continued to sparkle. Since his judicial efforts outlined in the House report, he's continued to represent top-flight companies such as Pfizer Inc., Chevron Corp., and IBM Corp. before the Supreme Court. In 2003, The American Lawyer picked Nager as one of its top 45 lawyers under 45. In 2004, Legal Times named him one of Washington's 12 leading lawyers in employment law. Even his volunteer job is enviable: this year he was named general counsel of the United States Golf Association.
But what's surprising to a number of lawyers who know Nager is that an attorney steeped in the rarefied air of appellate law would have had such close ties with an arm-twisting earmarks and government contracts lobbyist such as Abramoff. "It seemed illogical to me that he would know a glad-handing kind of guy like Abramoff," says James Wareham, a lawyer at Paul, Hastings, Janofsky & Walker who once worked with Nager at Jones Day and supported his effort to win a judicial spot. "Glen is very intellectual; he's not a guy you would see running around town raising money."
"I'm frankly surprised to hear that he knew Jack," says Christopher Dugan, another former Jones Day lawyer. "He's of the highest integrity."
Acheson, who vetted judges for the Clinton administration, says that much of Nager's extensive behind-the-scenes effort to marshal support for a nomination isn't unusual for would-be judges. What's unusual, she says (and former deputy White House counsel Flanigan agrees), is the involvement of a K Street lobbyist such as Abramoff.
"It is less common to have people who are sort of known lobbyists, the way Abramoff was, working on behalf of judicial candidates," Acheson says. "If you get someone who is a highly regarded appellate advocate, calling and saying, 'I think Glen Nager would be a terrific appointee to the D.C. Circuit'
... having that sort of support goes a long way."Of course, in Washington the distinction between lawyer and lobbyist can often be a fine one. And for a lifetime appointment from the president, mere professional credentials aren't enough. "Obviously," says Dinh, the former head of the DOJ's Office of Legal Policy, "even an extraordinarily qualified candidate like Glen needs to get the attention of decision-makers."
That may be true, but it was whom Nager used to try to get that attention which may have inadvertently left him branded with a scarlet A.
"If you didn't have the name Abramoff in it," says Thomas Morgan, a judicial ethics expert at George Washington University Law School, "you wouldn't be worried at all."
Copyright 2006 ALM Properties, Inc.
From: Legal Times, November 20, 2006, http://www.law.com/jsp/dc/PubArticleDC.jsp?id=1163498721982&hub=TopStories, accessed 11/22/06 (registration is required). Jason McLure can be contacted at jmclure@alm.com. Reprinted in accordance with the "fair use" provision of Title 17 U.S.C.§ 107 for a non-profit educational purpose.
References
- Anna Palmer, "Abramoff Begins Serving Sentence at Maryland Prison," Legal Times, November 15, 2006, http://www.law.com/jsp/dc/PubArticleDC.jsp?id=1163585119064, accessed 11/23/06.
- Pete Yost, "Ex-GOP House Aide [Mark Zachares] Latest to Admit Guilt in Abramoff Scandal, and His Wife May Be Next," The Associated Press, Reprinted in New York Lawyer, April 25, 2007, http://www.nylawyer.com/display.php/file=/news/07/04/042507cc, accessed 05/08/07.
JACK ABRAMOFF NEW YORK JUDGES
Censure Judge Berrigan?
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