The Nine (20 page)

“We are here this evening to acknowledge the remarkable work of some of the more egregious members of the liberal press corps,” said M. Stanton Evans to open the festivities at the annual dinner of the Media Research Center, a self-styled conservative watchdog organization, at the Monarch Hotel in Washington. The format for the evening was a mock awards banquet “honoring” what the hosts believed were examples of biased reporting. A procession of conservative luminaries “nominated” journalists for the prizes, and other guests “accepted” the humorously named awards, like the “Presidential Knee Pad Award for Best Journalistic Lewinsky.” The tone of the evening was raucous and cheerful. “There is not a vast right-wing conspiracy,” said John Fund, of the
Wall Street Journal
’s editorial page. “There’s a narrowly focused one—and it’s in this room!”

After speeches by Michael Reagan, the president’s son and a talk show host, and Oliver North, also at the time a figure in right-wing radio, the climax of the evening came with the presentation of the “I’m-a-Compassionate-Liberal-but-I-Wish-You-Were-Dead Award for Media Hatred of Conservatives.” This award was presented to an obscure columnist named Julianne Malveaux, for saying in a cable television interview about Thomas, “I hope his wife feeds him lots of eggs and butter and he dies early like a lot of black men do.”

Thomas had been laughing so hard early in the evening that Evans, the MC, said to him, “Justice Thomas, you are a great audience, too.” When Thomas stepped up to the microphone to “accept” the award for Malveaux, he received a standing ovation.

“Thank you,” the justice said, still laughing. “Normally, we are busy. This is a sitting week, so we have cases to decide tomorrow morning at 9:30, and I usually spend this night working. But we realized that this was such an important occasion that we decided it was time to put aside our personal obligations, the Constitution, the work of the Court, our little nephew, to attend…. I am pleased to accept this award on behalf of Suzanne Malveaux.” Thomas had mixed up Suzanne, a CNN correspondent, with her distant cousin Julianne; both are African American women.

As always, the confirmation hearings were never far from Thomas’s mind. “As I was listening to those awards, I was hoping that Nina Totenberg would also share in it,” he said. Totenberg, the NPR legal affairs correspondent, had played an important role in bringing Anita Hill’s story to the public. “I have finally had the opportunity to have my surgeon remove her many stilettos from my back, and I’d like to return them.”

But Thomas had a larger point to make. It wasn’t speeches like this one but his work on the Court that would be the best revenge against his enemies, and he planned on serving for a long time to come. To another rousing ovation, Thomas concluded that anyone hoping for his demise, including Malveaux, should have a great deal of patience. He said, smiling, “My doctor makes it clear that my blood pressure is fine, my cholesterol is normal, and I am in wonderful health.”

9

CARDS TO THE LEFT

T
he trajectory of the Lewinsky scandal in the Supreme Court reflected its course in the nation at large. The initial disclosures about the president’s behavior inspired widespread shock and outrage, and the Court took a harsh initial tack against Clinton. But as the president’s enemies ratcheted up the controversy into a constitutional crisis and then initiated the first impeachment proceeding in a generation, the sympathies of the public shifted. So did the Court’s. As Clinton rode a wave of popularity into the end of his term, the Court turned sharply in his direction. This happened, in part, because the majority of the Court in these years always tried to remain close to the center of popular opinion. But there was another reason the Court moved left in the late nineties, and it had to do with the changing role of Chief Justice Rehnquist.

The chief was seventy-three years old in 1998, when the Lewinsky story broke, and he didn’t have the energy he once did. His back had never fully healed from his long-ago gardening mishap, and his limp had become a permanent shuffle. But it was Rehnquist’s intellectual energy that had faded more than his physical strength. He had been a justice for more than a quarter century and chief justice for more than a decade. Rehnquist knew how everyone was going to vote, most of the time. He wasn’t going to change anyone’s mind—not in conference and not in written opinions. So, subtly but unmistakably, Rehnquist stopped trying. He became, in these years, primarily an administrator, committed more to moving cases efficiently through the pipeline than to shaping their result at the finish. He had reduced the job to its essentials: a morning meeting with his law clerks to talk about the progress of opinions, a meeting with his administrative assistant to address issues affecting the federal judiciary, lunch at his desk, review of paperwork after lunch, and limousine home by 4:00 p.m.

Once a month, there was poker. That didn’t change, although, thanks to the Lewinsky scandal, the players in his regular game did.

Bob Bennett and Bill Rehnquist were still raising young children when they met on the grounds of the McLean Swim and Tennis Club in 1972. Nixon had just appointed Rehnquist to the Supreme Court, and Bennett had recently left the United States attorney’s office and was beginning a career in private law practice that would make him one of the best-known lawyers in the country. They became friendly, and Bennett invited Rehnquist to join his monthly poker game. For the next thirty-three years, the rest of his life, Rehnquist rarely missed one.

The core group in the poker game remained remarkably stable over the years, though some players did come and go. Besides Bennett and Rehnquist, they included Walter Berns, a professor of constitutional law at Georgetown; Martin Feinstein, the director of the Washington National Opera; Tom Whitehead, a Washington businessman; and eventually Nino Scalia. Other players were Bob’s brother Bill Bennett, the former drug czar and conservative activist, and local federal judges David Sentelle, Thomas Hogan, and Royce Lamberth. The game was dealer’s choice, usually seven-card high-low, five-card draw, or a Scalia favorite known as choose-’em. After each hand, the cards were “passed to the left”—a phrase that often caused amusement because Bob Bennett was generally the only Democrat at the table. The existence of the game was no secret, but the members avoided attention. After the Washington lawyer Leonard Garment talked about the game to a reporter, he was no longer invited to play.

The location of the poker game rotated among the homes of the players, and Rehnquist always took a turn hosting at his modest town house in suburban Arlington, Virginia. The game unfolded according to a precise ritual. From 7:00 to 7:45 p.m., the players would arrive and eat sandwiches provided by the host. The game would last from 8:00 to 11:00. Small talk was kept to a minimum. (Robert Bork joined the game briefly, but he quit because no one wanted to talk about anything except poker.) For many years, everyone used only first names, but after Rehnquist became chief justice in 1986, the other players started calling him “Chief.” They also deferred to him to resolve any disputes that came up during the game. The stakes were low but not penny-ante; a player could win or lose about a hundred dollars in a night. (When Rehnquist was nominated to be chief justice, Bennett discreetly assigned an associate at his firm to research whether the game ran afoul of any gambling ordinances in the District of Columbia, Virginia, or Maryland. The search revealed no problems, and no one ever raised the issue anyway. This was fortunate for Rehnquist, because he also ran the Court’s betting pools on NCAA basketball, NFL football, and the Kentucky Derby.)

In May 1994, three months after Paula Jones made her first accusations of improper conduct by Clinton, the president hired Bennett to defend him in the sexual harassment lawsuit she had just filed. The players in the poker game generally avoided the subject of the Supreme Court, but Bennett thought the matter was so high-profile—and so likely to wind up in front of the justices—that he decided to withdraw from the game for the duration of his representation of the president. Scalia in particular tried to talk Bennett out of leaving, but Bennett thought the caution was prudent. He was correct, as on January 13, 1997, he found himself standing before the nine justices to argue the case of
Clinton v. Jones
.

At first the
Jones
case united the justices—against Clinton. The case gave most of them an outlet for their long-standing personal distaste for the president. Shortly after Clinton was first elected, a clerk told Rehnquist that the new president was thinking of nominating his wife as attorney general. “They say Caligula appointed his horse consul of Rome,” the chief replied dryly. O’Connor was almost physically repelled by the sordid nature of Jones’s allegations against Clinton; his behavior, as alleged, defined her all-purpose expression of distaste: unattractive. Stevens and Souter likewise found the matter unseemly and would rather have dealt with almost any other subject. Scalia and Thomas were all but openly hostile to Clinton and his agenda. And Clinton’s own nominees, Ginsburg and Breyer, had to avoid looking like they were favoring the man who appointed them.

There may have been a high principle at stake in
Clinton v. Jones
, but the facts of the case resembled a trailer-park sitcom more than a Supreme Court case. In brief, Jones alleged that on May 8, 1991, she was sitting at the registration desk for Governor Clinton’s Quality Management conference at the Excelsior Hotel in Little Rock. Clinton saw Jones, then named Paula Corbin, and asked one of his state troopers to invite her up to a room he was using in the hotel. After Corbin went to the room, she asserted, Clinton said, “I love your curves,” exposed himself, and asked her to “kiss it.” She fled in horror. (For his part, Clinton always said he had no memory of meeting the young woman and denied any misconduct.) Jones sued for sexual harassment, claiming that her superiors in the Arkansas Industrial Development Commission, where she was a secretary, retaliated against her for rebuffing Clinton’s advance.

The legal issue before the justices was Bennett’s argument that the magnitude of Clinton’s duties as president entitled him to a stay of all proceedings in the
Jones
case, including discovery and depositions, until he left office. Or, as Bennett told the justices, “The President of the United States should not be subject to litigation, either at trial or in discovery. Unless there is some compelling necessity, he should not be taken away from his constitutional duties.”

At oral argument, the justices were all over Bennett. Rehnquist said the case had nothing to do with Clinton’s “official powers as president.” Ginsburg made the same point, that the subject of the lawsuit was “conduct unrelated to his office.” Souter said he thought that, at a minimum, discovery unrelated to the presidency should proceed.

Stevens asked, “How long do you think it will take to try this case?”

“It’s impossible to say,” Bennett answered, more prophetically than he knew. “I can tell you the president has spent, personally spent, a substantial amount of time on this case already. The very nature of this case is so personal that it would require his heavy involvement.”

Scalia usually embraced expansive claims of executive power, but not this time. There was no way, he asserted, that Clinton was
so
busy. “We see presidents riding horseback, chopping firewood, fishing for stick fish—”

The audience chuckled.

“—playing golf and so forth and so on. Why can’t we leave it to the point where, if and when a court tells a president to be there or he’s going to lose his case, and if and when a president has the intestinal fortitude to say, I am absolutely too busy—so that he’ll never be seen playing golf for the rest of his administration—if and when that happens, we can…we can resolve the problem.”

For Clinton, the timing of the argument couldn’t have been worse. After a desultory campaign by Bob Dole, the Republican nominee, Clinton had just won a solid but hardly overwhelming reelection. In the final days of the campaign, a putative scandal regarding Clinton’s fund-raising practices had preempted any post-election honeymoon Clinton might have enjoyed. In January 1997, the
Jones
case looked like a convenient vehicle for the justices to take Clinton down a peg, but the controversy was not yet a major threat to his presidency and a constitutional crisis for the nation. As for Clinton himself, he nursed a measure of paranoia about Rehnquist and his role in the
Jones
case. The swearing-in at his second inauguration took place just seven days after the oral argument in
Clintonv. Jones
. Clinton told friends that the chief justice shook his hand and said, “Good luck—you’ll need it.” The president took the gesture as vaguely menacing.