The Cause Bush Did Justice To

By Jan Crawford Greenburg
Sunday, January 21, 2007

The courtroom crackled with tension on the final day of the Supreme Court's 2004-05 session. It was shaping up to be a historic day, many believed, and the seats were packed with top government officials and people who had camped out overnight in the sticky heat of a Washington summer. They had come for one reason: to see Chief Justice William H. Rehnquist announce his retirement after 33 years on the court.

Rehnquist was dying of thyroid cancer, and he appeared almost ghostly that morning as he pulled back his tall leather chair in the center of the bench. He was thin and stooped, his once-robust complexion now gray. His booming baritone, which had silenced many a lawyer, was weak, and he struggled even to briefly summarize the court's decision in a key religion case.

When he finished, he thanked the court for its work during a difficult year. The room grew still, and the other justices peered at Rehnquist. The chief justice paused briefly, then banged down the gavel and slowly rose. Most of his colleagues seemed confused. Only Justice Sandra Day O'Connor, his friend of five decades, appeared to have a sense of purpose. She already knew about his plans for the future -- and her own. She turned and stepped beside her old chief, ready to help him if he needed her arm, as he shuffled back to his chambers. There was no announcement.

The anticlimax that morning only reinforced unease among conservatives. Amid the rumors of retirement and change, they were facing an uncomfortable reality: The Rehnquist Court, with seven justices appointed by Republican presidents, had become a legal and ideological disappointment. The justices had consistently refused to set aside landmark liberal rulings of previous Supreme Courts and had declined to issue clear decisions on some of the most contentious matters of constitutional law. On issue after issue -- abortion, affirmative action, capital punishment, separation of church and state, and presidential power -- conservatives watched the court chart a liberal path, injecting itself into explosive public disputes and handing the left big victories.

Ironically, the court's decision on Bush v. Gore, in which the five most conservative justices voted to stop the Florida recounts in the 2000 presidential election and deliver victory to George W. Bush, was also a blow to conservatives: It opened the court to criticism for deciding the case on politics, not law, and those denunciations may have made the court's moderates, O'Connor and Anthony M. Kennedy, more wary of being cast as predictable votes on the right.

Once in the White House, however, President Bush was to ultimately get the openings that conservatives needed to remake the court for a post-Rehnquist era. When the chief justice announced his illness in the days before the 2004 election, the moment for change was at hand. And barely two months after Rehnquist banged his gavel for the last time, on June 27, 2005, Bush seized that moment and filled not one but two vacancies.

The departures of O'Connor and Rehnquist produced a titanic conflict over their successors, one that turned allies into enemies, damaged reputations and reopened old wounds. Yet, after bizarre missteps and strategic brilliance at the highest levels, Bush engineered lasting change in the court, succeeding where past Republican presidents -- including his own father -- had failed. And in so doing, he provided some redemption for the conservative movement, so dismayed by watching Republicans in the political branches flout ethics laws, expand government and indulge in runaway spending. If nothing else, they would get their court.

Bush was seared by his father's 1990 nomination of David H. Souter to the Supreme Court, and he vowed to avenge that mistake. Souter, an unknown New Hampshire jurist who edged out favored nominee Kenneth W. Starr, quickly became one of the court's most liberal justices. Conservatives consider his selection one of the biggest blunders of a Republican president in the 20th century.

Bush promised to nominate justices in the mold of Antonin Scalia and Clarence Thomas, and his advisers methodically looked for nominees who fit that bill. A group of advisers, including Vice President Cheney, had begun quietly interviewing prospective nominees after the extent of Rehnquist's illness became apparent. They were looking for solid judicial conservatives with proven track records. Determined to avoid a Souter redux, they looked for nominees with a clear paper trail. They did not want another Anthony M. Kennedy, a moderate conservative who they believed had drifted to the left in his years on the court. They believed that service in the executive branch, which typically desensitized people to media coverage, would stiffen a justice's backbone once those critical newspaper editorials began rolling in.

John G. Roberts Jr., a highly regarded Supreme Court advocate who had served in two Republican administrations, was among the top candidates. He also had impressed conservative colleagues during his short tenure on the D.C.-based federal appeals court, an impression that liberal judges confirmed. Judge Harry Edwards, an outspoken liberal on that court, said privately that Roberts was "the most conservative judge" he had ever seen. (And Edwards has served with Scalia and Thomas.)

Also on the short list was Samuel A. Alito Jr., a Newark-based federal judge who had 15 years of experience on the bench and who deputy White House counsel William K. Kelley believed had "never written a wrong opinion."

Roberts wasn't an obvious choice after his screening interview with Cheney and other top advisers. He had carefully held his views on controversial issues (including abortion) close for so long that some in the administration were suspicious of those views. But Roberts had supporters in the White House, and Kelley was one of them. He knew Roberts held conservative views; he just didn't share them often. He and others pointed to Roberts's record under presidents Ronald Reagan and George H.W. Bush, as well as his opinions on the appeals court, to convince skeptics that he was the kind of conservative Bush wanted to nominate. Roberts edged onto the short list to meet with the president.

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