Taking On the Supreme Court Case

When it came to vetting potential nominees, the vice president steered the selection committee

In May 2005, a small group of the president's senior advisers gathered to weigh a historic choice: who should succeed an ailing William H. Rehnquist as chief justice of the United States.

The meeting wasn't held at the White House or the Justice Department. And the highest-ranking official in the room wasn't the attorney general, the White House chief of staff, the White House counsel or the president's chief political adviser, although they were all there.

It was Vice President Cheney, and it was to an unpretentious room off the vice president's quarters that potential candidates were summoned for interviews.

The handful of candidates who survived a grilling of more than two hours by the Cheney-led selection committee would go on to what one participant described as a much shorter and "far more relaxed" interview with the president. President Bush seemed more interested in personal matters than in case law. By contrast, Cheney pressed for information that would shed light on the candidates' legal philosophies, demonstrating a sophisticated knowledge of doctrine and, without crossing the line by asking about specific cases, leaving a clear impression of the constitutional issue he considered paramount.

"I think one of the reasons that this is a primary interest of Cheney's is 9/11," the participant said. "Questions about every aspect of the government's war on terrorism could come before the courts."

That Cheney should play such an unprecedented role in vetting potential candidates is a measure of the trust Bush places in him, said David A. Yalof, who wrote a book about the history of Supreme Court selections. Senior aides to former vice presidents Al Gore, Dan Quayle and George H.W. Bush said that their old bosses' involvement was cursory by comparison.

From the start of his administration, aides said, Bush had made clear his desire for diversity on the federal bench, pressing his staff to consider qualified women and minorities, according to participants in the selection process. The subject of judicial appointments also animated the normally reserved Cheney, who rarely makes his views known in group settings with the president. Cheney's primary concern was ensuring that potential picks be reliably conservative.

"Some of the few times I can remember the vice president speaking up in an Oval Office meeting was on this subject," said former White House lawyer Bradford A. Berenson.

The Cheney-led selection group started with 11 potential Supreme Court finalists that included women and minorities and whose dossiers had been forwarded to Bush. They then culled that list, recommending that the president interview just five, according to two former senior White House officials with direct knowledge. They were U.S. Court of Appeals Judges John G. Roberts Jr., Samuel A. Alito Jr., James Harvie Wilkinson III, J. Michael Luttig and Edith Brown Clement.

All five finalists were white. All but one were men. What they shared were clear records of support for the positions most important to Cheney.

Collectively, the group had expansive views on executive power and limited views of congressional authority. One judge had already given the administration a victory in its quest, championed by Cheney, to detain terrorism suspects indefinitely. Two other candidates would soon bless other aspects of the administration's terrorism policies. The majority also had records indicating that they shared Cheney's view that affirmative action was unconstitutional, and one had sided with power companies in a case involving a pollution rule Cheney considered overly burdensome.

On July 19, 2005, Bush drew from the pool of five in nominating Roberts to fill the seat of Sandra Day O'Connor, who was retiring.