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.
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).