The Nine (45 page)

Sincerely,
Sandra Day O’Connor

It was, in O’Connor’s polite way, a direct shot at Bush and a plea for the cause that obsessed her in her final days on the bench. She was determined to protect the Court’s “role under our constitutional structure” precisely against the incursions that she thought Bush and his allies were attempting to make.

But few people noticed. O’Connor discovered quickly that retirement brought fulsome tributes but also immediate irrelevance. One moment she was the swing vote on the Supreme Court and the next, it seemed, she was a display piece in a museum. She had lost her job, and the political party that was her home had lost her. Worst of all, she was losing her husband. In those first days after her announcement, she didn’t answer the phone too often. She sat in her office and cried.

PART

FOUR

20

“‘G’ IS FOR GOD”

T
he planning for this moment—the opportunity for George W. Bush to nominate a justice to the Supreme Court—had begun shortly after Election Day in 2000. At the time, with Florida still undecided, it was not even clear that Bush would become president, but his team wanted to be ready with a nominee as soon as there was a vacancy. The transformation of the Court would be a central priority of the new administration, if Bush had the chance.

When he began his campaign for president, Bush did not devote a great deal of attention to the subject of the Court. As governor of Texas, he appointed judges with backgrounds much like his own; they were conservatives, but mostly in the corporate rather than the social and evangelical wing of the Republican Party. During the 2000 campaign, Bush sent signals that he would operate much the same way in the White House. In a debate with Al Gore, he was asked whether voters should assume all his judicial appointments would be prolife. “Voters should assume that I have no litmus test on that issue or any other issue,” Bush replied blandly. “The voters will know I’ll put competent judges on the bench.”

But five years later, when Bush finally had the chance to make an appointment to the Court, he had a very different agenda for his nominees. Inside the White House, “moderation” had gone from a goal to an epithet. The messianic nature of his presidency—Bush’s conception of his time in office as a moment of dramatic change for the world—affected his judicial nominations as much as it did his decisions on the Middle East. Through a combination of the staff he selected, the political strategy underlying his reelection, and his own personal evolution, Bush now sought transformative appointees, justices who would move the Court sharply and immediately to the right.

Only a few days after the 2000 election was resolved, Bush announced that he would be taking Alberto Gonzales, formerly his chief counsel in Austin, with him to Washington as White House counsel. Gonzales, whom Bush had recently placed on the Texas Supreme Court, chose just one of his local deputies, Stuart Bowen, to go with him. For the remainder of the White House legal staff—the people who would select and vet the candidates for the Supreme Court and other judgeships—the two Texans tapped into the conservative network that had been created two decades earlier for just this opportunity. Conservatives may have represented a lonely minority on law school campuses in the 1980s, but by the new century they constituted a powerful force in Washington. Nothing mattered more to them than taking control of the federal judiciary, especially the Supreme Court.

The young lawyers on the White House staff had a great deal in common. Virtually all of them were members of the Federalist Society. Many had worked on the various Republican investigations of the Clinton administration during the previous eight years. (Brett M. Kavanaugh was the principal author of the Starr report, Christopher Bartolomucci was an investigator in Senator Alfonse D’Amato’s investigation of Whitewater, and Bradford Berenson became a familiar media commentator on the investigations.) Several others, like Bowen himself and Timothy Flanigan, who ultimately became Gonzales’s deputy, joined up after working for Bush on the recount litigation in Florida. Most had clerked for conservative justices on the Court. (Kennedy clerks like Kavanaugh and Berenson predominated, because the justice tended to hire law clerks who were more conservative than he was.)

Before the inauguration, the early arrivals on the staff—like Kavanaugh, Berenson, and Helgi Walker, a former Thomas clerk—established themselves in office space reserved for the transition in a downtown Washington building. Among their first assignments was to write what were called “candidate memos”—that is, profiles of prospective appointees to the Court. Nearly fifty, Flanigan was the oldest of the lawyers on the staff and the only one who had served in the first Bush administration, as a high-ranking Justice Department official. He had a basic familiarity with the well-known Republican appointees to the courts of appeals, so he farmed out the writing of about a dozen of the profiles to the junior lawyers. Without contacting the candidates and working only from material in the public domain, they set out to analyze the judges’ suitability for the Court and their chances for confirmation. Some of the memos ran to almost a hundred pages. Their subjects became known as the “short list.”

After Bush took office in January 2001, the counsel’s operation moved to the Old Executive Office Building, next door to the White House. The lawyers soon turned their attention to the end of the Court’s term in June, a traditional time for justices to announce their retirement; an annual office pool on resignations was set up, with the winner awarded dinner at the AV Ristorante, a run-down Italian restaurant that served as an unofficial clubhouse for conservative lawyers in Washington. (The place was a favorite of Scalia’s until it closed in 2007.) Each year, throughout Bush’s first term, the betting focused on Rehnquist and O’Connor, but the killjoys who chose no resignations always wound up with the free pizza.

As the years passed without an opening on the Court, the lawyers rotated to other jobs, but one thing rarely changed—the short list. What was especially striking about the list was that it was compiled with little involvement from Gonzales—and none at all from Bush. The president had essentially delegated the matter of Supreme Court appointments to Gonzales, and he turned it over to his young aides. Bush, of course, would make any final decision, but the all-important culling was done almost entirely by some of the most conservative lawyers in the capital. Their priorities were straightforward—movement conservatives only; no “squishes.”

Gonzales and Flanigan provided minimal guidance. Bush wanted someone with judicial experience and a proven ideological track record. As was often the case in the Bush White House, the president was eager to avoid what he regarded as the mistakes of his predecessors. Bush didn’t want any Clinton-style agonizing or a long public search featuring abundant news leaks. When a vacancy came, the decision should be quick. Nor did Bush want a process like the one that led his father to nominate David Souter—where outsiders like Warren Rudman, then a New Hampshire senator, intervened at the last minute to push his protégé into the mix. That disorderly rush produced a nominee whose views turned out to be a surprise, at least to conservatives. George W. Bush didn’t want any surprises.

In public, the president invariably relied on the same catch-phrases when describing his favored judicial philosophy. “I believe in strict constructionists—judges who strictly interpret the Constitution and will not use the bench to write social policy,” he said. Or, as he put it on other occasions, he favored judges who would “interpret the law, not legislate from the bench.” Of course, all judges, even the most liberal, believe they are interpreting the law, so Bush’s summary really amounted to a coded reference to the outlines of a judicial philosophy. When Bush said judges were “legislating from the bench,” he meant overturning laws on individual-rights grounds, most notably restrictions on abortion rights. Bush was also talking about judges who prohibited public displays of religious observance. The president—and especially Vice President Cheney—also felt strongly that judges should not interfere with what they felt were the prerogatives of the executive branch in the conduct of foreign policy or military affairs.

As for a more detailed philosophy, like whether Bush supported the Constitution in Exile—and a return to a 1930s conception of the role of the federal government—no one really knew. During the 2000 campaign, Bush said in passing that he would look for judges in the mold of Scalia and Thomas, but he never repeated that promise, because downplaying it served his political purposes. The vow pleased his conservative base, but most voters ignored it. Still, the Scalia and Thomas remark ended up being the most important guidance the White House lawyers received. Unlike their boss, the young conservatives on Bush’s staff had thought through precisely what stamp they wanted to place on the federal judiciary—and a network of Scalia and Thomas acolytes was precisely what they had in mind.

The closest Bush came to spelling out what he wanted came every six weeks or so, when he met his judicial selection team, which usually included the vice president, Gonzales, and about a half dozen Justice Department and White House officials. Bush had a businessman’s contempt for lawyers generally, and he viewed the process of choosing judges with impatience. Like most other presidents in recent years, Bush deferred to senators of his party on the selection of trial court judgeships, and he always wanted to know what home-state Republicans thought of appeals court candidates as well. All he needed to know was that a judicial candidate was a “good conservative.” He rarely asked questions about candidates’ judicial philosophy and never gave any sign that he had read their judicial opinions.

But Bush did have another priority for his judges—diversity. Early in his presidency, when the political divisions in the country were not as toxic as they would become, Bush pressed for women and minorities on the bench. Given the ideological inclinations of the lawyers on his staff, it wasn’t the easiest assignment, but they did initially find a diverse group of judges to send to the Senate. In fact, the nomination of Bush’s first group of judges would be a little-noticed turning point in Bush’s administration.