Unraveling the Twists and Turns of the Path to a Nominee

By Peter Baker
Washington Post Staff Writer
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.

Then first lady Laura Bush weighed in, telling an interviewer that she wanted her husband to replace O'Connor with another woman. White House officials said they were surprised by the remark, but it helped intensify a fresh search for female candidates. Getting a hard look at this point was Clement, a judge on the U.S. Court of Appeals for the 5th Circuit, based in New Orleans. Recommending her, according to sources close to the process, was Donald Burnham Ensenat, a New Orleans native and Bush friend from Yale who holds the job of State Department protocol chief. Vitter also lobbied Karl Rove, the president's deputy chief of staff, and Harriet Miers, the White House counsel, on Clement's behalf.

The White House brought her in to interview with Vice President Cheney, Card, Rove and Miers. Cheney interviewed all of the finalists, more than a half-dozen. But the fact that Bush wanted more women on the list did not mean he was committed to appointing one. "It was one of those things where he felt that as long as he was looking at a list that was very diverse, he was satisfied in his mind with his approach to things," said the senior administration official.

Finally it came time for Bush to begin interviewing finalists. He did not need to talk with Gonzales or Thompson, so he focused on candidates he did not know. Aides suggested he conduct the interviews at Camp David to maintain secrecy, but Card concluded that he could sneak candidates into the White House without anyone noticing.

One of the first brought in on Thursday, July 14, was appeals judge J. Harvie Wilkinson III, who drove up from his home in Charlottesville. During the hour-long interview in the residence that evening, Bush was joined by only Miers and asked about college experiences, family life and exercise regimens, but did not delve into controversial issues. "I wasn't pushed for any views on any particular case or issue," Wilkinson said in an interview. "The process from beginning to end proceeded with total respect for the integrity and independence of the judiciary. I really appreciated that."

The next day's interview was with Roberts, but he had further to come because he was teaching a class in London. Roberts told virtually no one as he slipped back into town. "He kept it from most of his family," said his friend, Shannen Coffin, who likewise was in the dark. "I think his sisters were genuinely surprised when they learned the night of the selection that he was the guy."

To avoid notice, Roberts was brought into the White House by the East Entrance rather than through the West Wing and sat down with Bush about 5 p.m. that Friday afternoon. Joined again by Miers, the two talked for an hour about Roberts's background, and Bush gave him a tour.

"They really clicked well," a senior administration official said afterward. "The president relies on his intuition about people as well as his views on substantive issues. In this case, the stars aligned." Another top official put it this way: "He aced the interview."

The timing certainly aligned as well. Earlier that same day, the D.C. Circuit issued a ruling permitting the Bush administration to try suspected terrorists with special military tribunals. Signing onto the decision was Roberts.

Clement came in the next day, having flown up from New Orleans again. She had lunch with the president in the mansion and came away feeling good about the session. "She thought it went well," said one person close to Clement. She "felt confident and got good vibes from the meeting."

Two other candidates were interviewed in these days also, but officials would not reveal their identities. In the end, though, it kept coming back to Roberts. Among other things, in White House discussions with senators, Roberts was the one candidate no one objected to. "He was never black marked," one official said.

Roberts had flown back to London, but the White House called on Monday, July 18, three days after his interview, and told him to get back on a plane for Washington just in case.

At a black-tie dinner for the visiting prime minister of India in the White House State Dining Room that night, Card ran into Justice Clarence Thomas. "You're going to love who the president picks," Card assured him.

About 9 o'clock the next morning, representatives of conservative groups picked up their telephones to log into a strategy conference call. One participant announced with the air of certainty that the choice seemed to be Clement, implying he had heard from the White House, according to another person on the call, who would not identify the speaker. When others on the call grumbled because of her uncertain conservative pedigree, the speaker scolded the group, saying it was time to rally around the president's choice.

All over Washington and New Orleans, word spread furiously that Bush would name Clement. By midday, White House officials began privately cautioning reporters against the Clement reports. Yet some close friends of the White House were piqued and wondered whether the Clement speculation was circulated to throw everyone off the trail. "I think I got played . . . in a disinformation campaign on Edith Clement," one former administration official complained. Several conservative lawyers assumed that the Clement reports must have been a trial balloon to gauge reaction. "They got more pushback than they anticipated," one lawyer said.

The White House denied any role in the Clement surge. "I can with every bone in my body tell you that it was not a strategic head fake," said a top administration official. "That would work against you. Think about it -- if you're going to appoint a white male, why would you do that?"

At the White House, Bush finally revealed his choice to his top circle. About 20 aides and administration officials were informed Tuesday morning that he had chosen Roberts. At 12:35 p.m., the president ducked out of lunch with the visiting Australian prime minister to call Roberts. About an hour later, Miers called Clement on her mobile telephone to tell her the news. Clement was having lunch with a former law partner in New Orleans. She took the disappointment graciously. "She did not even reveal to her luncheon partner what the phone call was about," said a friend, Nan Roberts Eitel.

At 7 p.m., Roberts arrived at the White House along with his wife and two children. They sat down for dinner with the president and then at 9 p.m. strode into the East Room to announce the decision to the nation.

Staff writers Jo Becker, Dan Eggen, Jerry Markon and Jim VandeHei contributed to this report.

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