Dear Bill: From my viewpoint there are a few disturbing flaws in the procedures that we are using in selecting individuals for appointment to the Federal judiciary.1 The situation could well be due entirely to a possible failure of mine to make sufficiently clear the policies that I believe applicable.
Primarily, of course, I depend upon the Attorney General to assist me in this work and, indeed, to take the initiative in mobilizing pertinent facts upon which I can base a decision. Your findings, involving such factors as character, experience, and ability, are of necessity practically conclusive. But the White House has a very direct interest in other considerations, an interest that must often express itself long before the time has arrived for a final decision.
Too often the White House, by which I mean my two principal assistants as well as myself, is uninformed as to vacancies, prospective vacancies, and possible candidates for some judicial position until it is far too late to have any flexibility in choice. It is more than embarrassing to find, for example, that I have approved a man’s name for appointment, and later to discover that a number of highly respected citizens and political associates were vigorously sponsoring another individual, but without full White House knowledge of the situation. Lately I was confronted with a statement from an old friend and acquaintance that some four years ago I had promised a future appointment to an individual and that I had later forgotten the matter and approved the appointment of another.2
I expect my staff to give me timely information provided by you and by outside individuals as to pertinent facts in these cases so that I may have adequate freedom of choice before any appointment, direct or indirect, has been made on my behalf. In turn my staff will keep you informed as to facts presented directly to the White House by others.
It is the responsibility of the Attorney General, of course, to present for consideration only men of the highest professional standing and unimpeachable character. (Incidentally, if occasionally you find a man highly qualified for appointment who does not exactly meet some of the criteria I have personally established you are, of course, at liberty to include his name in the group for consideration. Such criteria are established as general guides, but this does not mean that in a special case one or more could not be violated).
To keep abreast of developments in this kind of case, I request that you follow the simple procedure below outlined:
(1). Either personally, or by confidential memorandum sent to me (through either General Persons or Mr. Morgan) you will please, at the earliest practicable moment, notify me of what vacancies are expected to occur or have actually occurred.
(2). In the same or a later confidential memorandum to me, list the names of the individuals who have been recommended to you and those who are being considered by your office, together with the names of principal sponsors, particularly where these include the Governors, Senators, or members of the Congress from any given state.
(Note: If either item 1 or 2 is carried out through personal conversation between you and me, please leave with me a short memorandum of pertinent facts).
(3). When you believe that the accumulated information warrants a decision, please confer with me as soon as convenient in order that I can personally discuss with you the matter and give final approval.
(4). Thereafter the final papers should be processed as promptly as practicable.
In the past I have always tried to keep these matters almost wholly on a verbal basis, particularly because of the importance of avoiding leakage while the process of selection goes on. However, I have found that not only is my memory far from infallible, but it is also important that in certain considerations applying to the appointing process I need the counsel and advice of my own principal staff officers.
Incidentally, I believe that in both the Attorney General’s office and in the White House the fewest possible persons should have any knowledge of the work involved in selecting nominees. So far as possible the matter should be kept on an "eyes only" basis.3
With warm regard, As ever
