The Nine (49 page)

Rehnquist had surprised almost everyone by not resigning on the last day of the term in June. His voice had been raspy and his tracheotomy tube still in place, but his good humor that day suggested he might be holding his disease at bay. His stated hope to O’Connor that he wanted to serve one more year appeared plausible, if not exactly realistic.

But the chief’s health had declined over the summer. Anaplastic thyroid carcinoma is an especially virulent cancer; it is rare for patients to live longer than a year after diagnosis, and Rehnquist by summer had passed the eight-month mark. His mind never failed, and he was delighted to learn that Roberts, his former law clerk, had been nominated to serve with him. Only four former Supreme Court law clerks had gone on to become justices: Byron White (clerk for Chief Justice Fred Vinson), Rehnquist himself (for Robert Jackson), Stevens (for Wiley Rutledge), and Breyer (for Arthur Goldberg). Roberts would have been the first to serve alongside his one-time boss.

During the summer, although Rehnquist was twice taken to the hospital with breathing problems, his dry humor remained intact. When asked on his final visit to the emergency room who his primary care physician was, the chief muttered, “My dentist.” On Monday, August 29, he told a visitor to his home that he still planned to participate when the Court opened in October, but at that point there was nothing more his doctors could do for him. He died with his three children beside him in his town house in Arlington on the night of Saturday, September 3.

Earlier in the week of Rehnquist’s death, starting on August 29, Hurricane Katrina nearly demolished New Orleans and the surrounding area. The stumbling federal response to the crisis transformed the Bush presidency, including the selection of Supreme Court justices.

The president didn’t make it to the general vicinity of the damage until September 2, when he received a briefing at the airport in Mobile, Alabama. There, on that morning, Bush uttered one of the defining phrases of his presidency—“Brownie, you’re doing a heck of a job”—to the hapless director of the Federal Emergency Management Agency, Michael Brown. Even in the first few days after Katrina, it was clear that the White House needed any distraction from the calamity.

In normal circumstances, Bush might have taken some time to study his options following Rehnquist’s death on the Saturday of a holiday weekend. Cheney, as well as some others in the conservative movement, had been urging him to consider promoting Scalia, and the idea at least seemed worthy of some consideration. But Roberts’s nomination in July had been a total success, and now the administration—rather desperately—needed another. As almost always throughout his presidency, Bush defined success as pleasing his base.

Over the summer, conservatives embraced Roberts, who was little known outside Washington when he was nominated. During that time, reporters obtained access to about 75,000 pages of documents from Roberts’s days as a young lawyer in the Reagan White House. His memos showed him to be an enthusiastic and sometimes caustic conservative who, for example, dismissed “the purported gender gap” between men and women in income and asserted that proposals to address the problem were “staggeringly pernicious” and “anticapitalist.” Reflecting the views of his bosses, Roberts supported school prayer and opposed affirmative action. In response to a proposal by a Democratic congressman to hold a “conference on power sharing” to iron out the duties of each branch of government, Roberts said, “There already has, of course, been a ‘Conference on Power Sharing.’ It took place in Philadelphia’s Constitution Hall in 1787, and someone should tell [Congressman] Levitas about it and the ‘report’ it issued.”

In the mainstream news media, which were still largely working off an obsolete model of the confirmation process, these memos were generally treated as problems for Roberts’s nomination (although manageable ones, to be sure). The governing idea behind the news coverage was that Roberts, like Bork, risked defeat if he was seen as too conservative. But the truth was precisely the reverse—that the only threat to a Bush nominee to the Supreme Court was if he or she was seen as not conservative enough. As Manuel Miranda wrote in the online
Wall Street Journal
about Roberts’s Reagan-era memos, “One sentiment is widely shared among conservatives: What a relief. Judge Roberts’s writing as a young lawyer show him to be a solid constitutionalist.”

Bush needed good news so badly that he acted with a degree of haste that was nearly disrespectful to Rehnquist. At 8:01 a.m. on September 5, Labor Day, less than forty-eight hours after Rehnquist died, Bush summoned the news media to the Oval Office to announce that he was nominating Roberts to be the seventeenth chief justice of the United States. “For the past two months, members of the United States Senate and the American people have learned about the career and character of Judge Roberts,” Bush said. “They like what they see. He’s a gentleman. He’s a man of integrity and fairness.”

The continuing fallout from the hurricane meant that Roberts’s hearings received relatively little attention, especially since the outcome was a foregone conclusion. (They began slightly later than originally planned because Roberts was now being considered for chief, not associate, justice.) In his opening statement, on September 12, Roberts said, “A certain humility should characterize the judicial role. Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire.” Roberts was right about the motivations of baseball fans, if not Supreme Court justices. In truth, unlike umpires, Supreme Court justices
do
make the rules, and their job amounts to far more than a mechanical process of applying them.

As to how Roberts himself would apply the vague commands of the Constitution, he was careful not to commit himself. Under questioning from Arlen Specter, Roberts said that
Roe
was “settled as a precedent of the court, entitled to respect under principles of stare decisis,” but he also pointed out that the justices sometimes reversed their own precedents. Roberts wouldn’t say how he would vote on
Roe
. Like all other nominees, Roberts dodged making commitments, but his winning manner and broad erudition were manifest. He remembered the names of old cases with ease and summarized the arguments on a wide variety of constitutional controversies. He quoted the Federalist papers from memory. Senator Dick Durbin, an Illinois Democrat, spoke for many when he said Roberts “retired the trophy” for outstanding performance by a judicial nominee. On September 22, he was confirmed by the Judiciary Committee by a vote of 13–5. A week later, he was confirmed by the full Senate by a vote of 78–22.

Shortly after Bush nominated Roberts for chief justice, the White House announced that the president would refrain from announcing his choice for the O’Connor seat until the new chief was confirmed. Administration officials reasoned wisely that there was no reason to give political opponents several extra months to attack a second choice for the Court. But even though the White House wasn’t making any names public as possible replacements for O’Connor during that period, Bush’s aides were weighing their options.

With the exception of the Roberts nomination, the summer brought only dismal news for the Bush administration. Earlier in 2005, Iraqis had staged their first free elections since the war, and the voters’ purple-ink-stained fingers became symbols of a hopeful emerging democracy. But in the months that followed, chaos reigned, and dozens of American troops continued to die in Iraq each month. Also during this period, Bush’s plan for including private accounts in the Social Security system crashed, scorned even by most Republicans. Finally, the overall federal response to Hurricane Katrina was widely viewed as indifferent at best and incompetent at worst. Bush’s approval ratings plunged—from around 60 percent favorable at the time of his reelection to about the same percentage unfavorable less than a year later. It was in this context that the president made his second appointment to the Supreme Court.

Once again Bush considered naming a woman to the Court. After O’Connor’s resignation, he had been pressured on the subject from some unusual sources. While on a trip to South Africa, Laura Bush said on NBC’s
Today
show, “I would really like him to name another woman.” Later that day, Bush appeared startled that his usually circumspect wife had made such a direct appeal through the press. “I can’t wait to hear her advice—in person—when she gets back,” he said in the Oval Office. O’Connor herself signaled that she felt more freedom in her public comments now that she was a lame duck. Returning to a judicial conference in Spokane after a day of fly-fishing, she was informed that Roberts would be named to replace her. “That’s fabulous!” she said, calling Roberts a “brilliant legal mind, a straight shooter, articulate. He’s good in every way, except he’s not a woman.”

But what woman? Bush had already considered various possibilities earlier in the summer, and he had not come up with a perfect choice. The president had been explicitly warned by Harry Reid, the Democratic leader in the Senate, that the women judges most beloved by conservative activists—Janice Rogers Brown, Edith Jones, and Priscilla Owen—would likely meet a filibuster. Bush didn’t shy from confrontations, but he saw no reason to prompt an unnecessary clash either. Wouldn’t it be better to propose a justice who shared his own views—which were essentially indistinguishable from those of his party’s most conservative members—but who would also have an easy time getting confirmed? Was there anyone who fit that description?

As Bush was talking about the issue with his aides, he remembered something else that Reid had said earlier in the summer. Reid, too, wanted to avoid an unnecessary battle over the Supreme Court. In addition to proffering his Democratic blacklist, the senator raised an interesting possibility. He said he had met with Harriet Miers shortly before Roberts was nominated and he had been very impressed. Reid said Bush should consider his own White House counsel as a nominee to the Supreme Court.

Bush was intrigued. No one was more loyal to him and his agenda than Harriet. And the Democratic leader was suggesting that she could be confirmed without a fight.

22

“I KNOW HER HEART”

T
he nomination of Harriet Miers to the Supreme Court quickly devolved into political black comedy. The caricature of Miers that emerged during her brief journey across the national consciousness—that of a luckless spinster manifestly unqualified to serve on the Court—contains a measure of truth, but her defeat actually stood for something of larger significance. Miers holds a unique place in the history of the Supreme Court as the only nominee to withdraw her name from consideration by the Senate even though she probably would have been confirmed. Why would anyone do such a thing? Because Miers had been vetoed by the most conservative elements of the Republican Party.

Shortly after O’Connor announced her resignation in July of 2005, Andrew Card, Bush’s chief of staff, had asked Miers whether she wanted to be considered for the vacancy, and she declined. As a result, Miers administered the White House operation for selecting the next justice. She was well suited for the job, because it called for meticulousness and discretion and thus resembled her earlier work in the White House, as staff secretary and then deputy chief of staff. In her new post as White House counsel, Miers had run the search, supervising her associate counsels’ updates of the candidate memos and then bringing in the finalists for interviews. She also consulted with members of the Senate, leading Harry Reid to become a fan. Once Bush chose Roberts, Miers coordinated the White House end of the confirmation process—juggling the requests for information from senators, managing the preparation of the mammoth background questionnaire that Supreme Court nominees must complete, and arranging for the “murder boards” where Roberts trained for his testimony before the Judiciary Committee. This complex process went as smoothly as Roberts’s own performance, so the easy confirmation of the new chief justice cast a favorable glow on Miers as well as Roberts himself.

Bush did not focus as much on the second vacancy as he did on the first. He spent almost the whole month of August 2005 on vacation at his ranch in Crawford, Texas. When he returned to Washington, he immediately became preoccupied with trying to address the humanitarian and political aftermath of Hurricane Katrina. By mid-September, the Roberts process was wrapping up, and Bush still had no nominee for the O’Connor seat—and hadn’t thought much about it, either.