The Cause Bush Did Justice To

Meanwhile, Alito had wowed the group in his interview with his quiet confidence and sparkling conservative record. He even joked about his nickname, "Scalito," which journalists used to compare him to Scalia. (Alito disliked the nickname, believing it had less to do with his opinions than with his Italian ethnicity.)

Then O'Connor shocked Washington by announcing her retirement in July 2005, with the ailing Rehnquist still serving as chief justice, and administration lawyers renewed efforts to find female and minority candidates. However, Bush eventually went back to his original list and interviewed five contenders: Alito, Roberts, Edith Brown Clement, J. Michael Luttig and J. Harvie Wilkinson III. Bush told advisers that Roberts's qualifications "jumped off the page," and that Roberts's congenial nature would be an asset in a court packed with strong personalities. After interviewing Roberts in the West Wing, Bush quickly settled on him to replace O'Connor.

Six weeks later, on Sept. 3, the weekend before Roberts's confirmation hearings were to begin on Capitol Hill, Rehnquist died at home in Virginia. His death came at one of the lowest points of Bush's presidency. Only five days before, Hurricane Katrina had devastated the Gulf Coast, killing nearly 2,000 people and displacing many more. As the floodwaters rose and state and local officials floundered, neither Bush nor his administration seemed to grasp the scale of the disaster.

On the weekend of Rehnquist's death, Bush was in full damage-control mode, and he did not hesitate on his decision for the court's new leader. He called Roberts at his home in Chevy Chase less than 12 hours after the news of Rehnquist's death became public, and asked him to come to the White House that afternoon. The next morning, he introduced Roberts as his nominee for chief justice -- just moments before he boarded Air Force One for another trip back to the ravaged Gulf Coast.

Now Bush had to find a replacement for O'Connor, and this time he told advisers that it would be a woman or a minority. He was getting pressure, including from the first lady, to nominate a woman. And as new White House lawyers were to quickly learn, the president indeed cared about diversity and demanded that the lists of nominees to federal posts or lower courts always include women and minorities.

But as one candidate after another fell off the roster -- some were too old, some too liberal, some too unpredictable -- White House counsel Harriet Miers edged her way onto it. The Miers story -- how she became the nominee and then withdrew -- is a perfect storm of missteps and disconnect throughout the White House.

Bush's decision to nominate Miers was driven by his determination not to repeat his father's mistake with Souter. Of all the possible nominees, he knew Miers best, and he knew she would not change. She had been involved in the selection of Roberts; in fact, Miers had originally worried that he wasn't conservative enough. Bush was confident that she wouldn't disappoint.

Coincidentally, the opposition of conservative groups to Miers also was driven by the Souter nomination. To conservatives, Miers was an unproven and untested nominee, just as Souter had been. How could she stand up to the liberal intellectual heavyweights on the court, such as Stephen G. Breyer? Who could say she wouldn't change once Bush left town and headed back to Texas? Conservatives would not be fooled again.

Alito was waiting in the wings when Miers's nomination fell apart. Unlike Reagan, who appointed the more liberal Kennedy to the court in 1987 after his nominations of Robert H. Bork and Douglas H. Ginsburg went down in flames, Bush had no problem seeking another solid conservative. With a Republican majority in the Senate, he did not compromise. Alito was considered a solid conservative, though not combative like others, and he had hired liberal law clerks. Bush hoped that Alito, like Roberts, would prove effective in building coalitions.

The call from the White House surprised Alito. Living in New Jersey, he had been insulated from the negative Washington buzz over Miers. He had absorbed the disappointment about being passed over and had come to terms with remaining a federal appellate judge. Alito didn't know that he had been Miers's choice for the O'Connor vacancy after Roberts got the nod for the top spot. She liked his quiet confidence; he didn't seem to be pushing too hard for the job. When Alito was nominated just four days after Miers dropped out, she greeted him warmly in the White House, moments before Bush introduced him as his next nominee.

With the miasma in Iraq and a historic midterm election that wrested control of Congress from Republicans, many have labeled Bush's presidency an unmitigated failure. Yet no historian will be able to write that Bush failed to follow through on his campaign promises regarding the Supreme Court. His nominations of Roberts and Alito -- two of the most conservative justices to reach the court in many years -- will be felt for decades to come.

Bush fulfilled his early vow to appoint justices in the mold of Scalia and Thomas. Together with those two justices, Alito and Roberts make the Roberts Court the most conservative Supreme Court in half a century. Roberts and Alito will not be as forceful as Scalia and Thomas on the bench or in their opinions; they are unlikely to push moderates away with their strong views. For that reason, they may be more effective than Scalia or Thomas in finally removing the court from the contentious social issues that conservatives think belong in legislatures. With the court now poised to recede from some of those divisive cultural debates, George W. Bush and his lawyers at the White House and Justice Department will continue shaping the direction of U.S. law and culture long after many of them are dead.

Jan Crawford Greenburg is the legal correspondent for ABC News and author of "Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court" (Penguin Press).