Unraveling the Twists and Turns of the Path to a Nominee
Monday, July 25, 2005
On the last day of June, President Bush hosted a dinner party in the executive mansion. He was trying out a prospective new White House chef, who served squab, Texas kobe sirloin steak, salad and a chocolate mango-tango tart for dessert. Around the table were a couple of senators, a couple of House members, a couple of ambassadors and some spouses.
At one point, the conversation turned to the preoccupation of the day -- the Supreme Court. If there were to be an opening, one of the guests, Sen. David Vitter (R-La.), told the president he should consider a New Orleans federal appeals judge, Edith Brown Clement. Bush seemed interested and asked Vitter about her. "The president already knew the name," Vitter recalled last week. "She was already on some sort of short list."
What Bush knew, but none of his guests did that night, was that the subject was hardly idle chatter at a Washington dinner party. The court's marshal had informed the White House just a few hours earlier that a sealed envelope would be delivered the next day from one of the justices, though the marshal did not say from which one. Bush understood that meant that he would wake to the first Supreme Court vacancy of his presidency and the first in 11 years.
When the plain manila envelope from Justice Sandra Day O'Connor arrived at 10:15 a.m. on July 1, Bush launched his White House on a secretive campaign to find a nominee who would match his view of the limited role of the judiciary, present the Senate with a selection that would be hard to challenge and ultimately move the high court to the right. For the next 18 days, he sifted through file after file and eventually sat down with five candidates, including Clement, until settling on his choice, a federal appellate judge from Washington named John G. Roberts Jr.
Much of Bush's selection process remains opaque, guarded jealously by aides who refuse to disclose many details even now that it is over. But interviews with dozens of administration officials, outside White House advisers, Republican strategists and others close to the process peel back at least some of the shroud and reveal a process that took several unexpected twists and turns for a White House that prides itself on order and discipline.
The selection presented Bush with a test: He could choose boldness or safety. He flirted with nominating the first Hispanic justice at the risk of alienating his base. He considered naming a woman to replace the court's first female justice. He evaluated several passionate conservatives in the mold of Justice Antonin Scalia. Yet in the end, he circled back to long-standing convention, picking a white male with an impeccable résumé, presumably conservative but not so outspoken as to provoke an all-out fight. Rather than dismiss Senate Democrats, Bush called their bluff and consulted with dozens of them.
"We came to the conclusion that we could bombard them with volume," said a senior administration official who spoke on the condition of anonymity because the process was kept confidential. "It worked better than we thought."
From the start, Bush had a list of candidates and took files on 11 would-be justices to read on a flight to Europe a few days after O'Connor's announcement. The list would ebb and flow over the next couple of weeks, some names crossed off, others added. The fact that it was O'Connor who was retiring, rather than Chief Justice William H. Rehnquist as the White House had expected, shifted the dynamics. "Our list didn't change much but our attitude to some people did," the official said.
At the top of the list from the start was Roberts, 50, a former clerk to Rehnquist, White House lawyer for Ronald Reagan and deputy solicitor general to Kenneth W. Starr. White House Chief of Staff Andrew H. Card Jr. knew Roberts from their time in the Reagan administration, and he was known within the Bush team as a smart and smooth conservative with extensive Washington ties in both parties.
But there were others on the radar screen, including another federal appellate judge, J. Michael Luttig, a conservative favorite. Another obvious candidate was Bush's longtime friend, Attorney General Alberto R. Gonzales, who would have been the first Hispanic on the court. But the president and his aides were shocked when conservatives launched a concerted assault on Gonzales for being too moderate.
The outside attacks reflected a secret division within the White House as well. "A lot of the folks on the staff were really committed to naming an Hispanic," said Manuel Miranda, a former Senate lawyer and one of the most vocal Gonzales critics. "We kept on pressing because I was told by someone in the White House that it was important for folks to keep talking about Gonzales, otherwise the people who were comfortable with him would win out." Ultimately, the White House quietly signaled to its conservative supporters that Gonzales was off the table. "I do think they got the message."
The search lurched in other directions. Bush was intrigued by the suggestion by Senate Judiciary Chairman Arlen Specter (R-Pa.) that he consider non-judges. "After that, he asked us to double check -- had we thought outside the box?" the senior official recalled. That prompted a 24-hour flurry of activity to reexamine the field. Attention focused on former deputy attorney general Larry D. Thompson, who would have been only the third African American to serve on the high court. "He got a lot of attention," the official added.