The Oath (20 page)

Obama took a different approach. He knew that Bush’s high-profile announcement of his first nominees was intended, and taken, as a provocation to his political adversaries. Obama preferred to try to lower the political temperature. He thought it would be better to start with a single, uncontroversial choice that would burnish his postpartisan credentials. In this way, he could show his good faith to Senate Republicans and expect similar fair dealing in return. So Obama wanted a first nominee who was sure to have Republican support.

As it turned out, there was a perfect candidate lined up. On March 17, 2009, President Obama nominated David Hamilton, the chief federal district court judge in Indianapolis, to the Seventh Circuit court of appeals. Hamilton had been vetted with care. After fifteen years of service on the trial bench, he had won the highest rating from the American Bar Association; Richard Lugar, the senior senator from Indiana and a leading Republican, was supportive; and Hamilton’s status as a nephew of Lee Hamilton, a well-respected former local congressman, gave him deep connections. The hope was that Hamilton’s appointment would begin a profound and rapid change in the confirmation process and in the federal judiciary itself. What could go wrong?

Almost everything. Not for the last time, Obama misread the political environment in the Senate. As they put it in the White House, “Hamilton blew up.” Conservatives seized on a 2005 case in which Hamilton ruled to strike down the daily invocation at the Indiana legislature because its repeated references to Jesus Christ violated the establishment clause of the First Amendment. Hamilton had also ruled to invalidate a part of Indiana’s abortion law that required women to make two visits to a doctor before undergoing the procedure. By the time Patrick Leahy, the chairman of the Judiciary Committee, scheduled a vote on Hamilton, in June, the best he could muster was a straight party-line vote, 12–7, in favor of the nomination. (Months of delay followed. The nomination did not reach the Senate floor until November 19, and Hamilton
was confirmed by a vote of 59–39.) Obama had chosen the Hamilton nomination to send a message, but he wound up receiving one instead. Republicans
cared
about the courts.

And as everyone knew, a Supreme Court vacancy was imminent.

No justice on the Court spent more time on the job, or enjoyed it less, than David Souter. Six days a week, sometimes seven, Souter would drive his battered car into the basement parking lot and trudge up to his chambers on the first floor. On weekends, he would occasionally forswear his three-piece suit. Souter lived in a modest apartment in an unlovely neighborhood. He didn’t go to parties or even out to dinner. His world was mostly circumscribed by the jogging paths near his home and the corridors of the Supreme Court building. (In 2002, Souter did happen to attend a party to celebrate Strom Thurmond’s one hundredth birthday. Afterwards, he told his law clerks, “If I am still on the Court at eighty-five, I want one of you to shoot me.”) Even people who didn’t know much about the Court knew that David Souter hated Washington.

There was truth in this, but it was far from the whole story. In some ways, Souter didn’t mind having his unhappiness on the Court portrayed as a simple eccentricity, like his predilection for lunching on a cup of yogurt and an apple (including the core).
This is a guy who doesn’t know how to use a computer or a cell phone—and, crazily enough, he doesn’t like Washington either!
That kind of explanation obscured the more painful truth. Ironically, Souter liked Washington somewhat more in his later years on the Court, in part because he had his first serious girlfriend in years. It was true that Souter wanted to return to New Hampshire, but the reasons were harsher, and uglier, than a simple longing for the White Mountains. He abhorred the views of Roberts and Alito. Souter didn’t like what the Republican Party—his party—was doing to the Court, or to the country.

Souter identified with a tradition in American politics and law that had almost vanished from public life: the moderate Republican. As Souter was moving up the ranks in New Hampshire, from attorney general to the state supreme court, his mentor was Warren Rudman. New England used to abound in moderates like Rudman—and Lowell
Weicker in Connecticut, Robert Stafford and Jim Jeffords in Vermont, and John Chafee in Rhode Island. On the Supreme Court, moderate Republicans had played crucial roles for decades: John Marshall Harlan II in the fifties, Potter Stewart in the sixties, Lewis Powell in the seventies, and Sandra Day O’Connor in the eighties, nineties, and beyond. As a group, they prized stability and venerated precedent. So did Souter, who liked to quote something that Rehnquist (hardly a moderate himself) used to say: “The law of the United States is like an ocean liner. You can’t turn it on a dime.” Scalia and Thomas, joined now by Roberts and Alito, thought otherwise and were trying to make that sharp turn in case after case. Moderate Republican ideas, like moderate Republicans, were disappearing from the Court as they were disappearing from the country.

For Souter, all his worries, all his distaste for the modern Court, had come together in a single case:
Bush v. Gore
. In the years since the decision, in 2000, there was a kind of informal agreement among the justices not to talk about it. They were used to disagreeing with one another, of course; that was the nature of the work. But the wounds of
Bush v. Gore
were so deep, the anger so profound on both sides, that it was thought best to avoid the subject altogether. Momentous Supreme Court cases tend to move quickly into the slipstream of the Court’s history. In the first ten years after
Brown v. Board of Education
, the justices cited the case more than twenty-five times. In the ten years after
Roe v. Wade
, there were more than sixty-five references to that landmark ruling. By the time Obama became president, it had been nearly a decade since the Court, by a vote of 5–4, terminated the election of 2000 and delivered the presidency to George W. Bush. Over that time, the justices provided a verdict of sorts on
Bush v. Gore
by the number of times they cited it: zero.

Bush v. Gore
broke David Souter’s heart.
The day the music died
, he called it. It was so political, so
transparently
political, that it scarred Souter’s belief in the Supreme Court as an institution. Scalia, in his public appearances, would often be asked a hostile question about
Bush v. Gore
, and he always said the same thing: “Oh, get over it!” Souter never did. After the election of 2004, Souter almost quit the Court in disgust. After all, he thought, George W. Bush told the people what he wanted to do with the Supreme Court, and he won the election, so perhaps he should just let Bush have his chance. Souter thought of Oliver Wendell
Holmes’s mordant observation about the role of a judge in a democracy: “I always say, as you know, that if my fellow citizens want to go to Hell I will help them.” A close friend in New Hampshire talked Souter out of quitting, but he was certainly ready to go by the time Obama won the election. Souter would not even turn seventy years old until later in 2009—still middle-aged for a Supreme Court justice—but he had had enough. Roberts and Alito were obviously intelligent and honorable men, Souter thought, but he didn’t recognize their approach to the law. He thought it was time to let someone else try to figure it out.

Through former Souter clerks on his staff, Greg Craig learned that Souter planned to leave at the end of the 2008–09 term. Souter asked his clerks to find out from Craig what the best time for his announcement might be. Craig sent back word that late in the spring would be better than earlier; that way, Obama could build up some momentum with other judicial nominations before moving on to the Supreme Court. In any event, the formal announcement leaked out rather awkwardly. On the evening of April 30, Nina Totenberg of NPR and Pete Williams of NBC announced that Souter would be retiring at the end of the term. The following day, other news outlets confirmed the story, but there was still no official word from Souter or the Supreme Court. Craig decided simply to call Souter and ask him what was going on. Souter confirmed that he was retiring and would write his formal letter of resignation the next day.

Supreme Court resignation letters are an art form. The justices know that the letter will be widely distributed, so they make an effort to craft a meaningful valedictory. “It has been a great privilege, indeed, to have served as a member of the Court for 24 terms,” O’Connor wrote in 2005. “I will leave it with enormous respect for the integrity of the Court and its role under our constitutional structure.” (This sentence reflected what O’Connor intended: her pride that the Supreme Court had reined in George W. Bush’s excesses in the war on terror.)

In contrast to O’Connor but in keeping with his singular style, David Souter wrote his letter with all the poetry of a phone bill:

Souter’s letter meant that he had served long enough as a federal judge to retire at full pay. (Years earlier, Souter had made a series of canny investments in New England bank stocks that multiplied in value and left him, with Ginsburg, as the wealthiest justice, with a net worth between $6 million and $27 million. But Souter remained at heart a frugal New Englander, and if he was entitled to retirement pay, he was going to take it.) Souter’s letter meant further that he wanted to continue sitting as a circuit court judge, as was his right, following his resignation as a justice.

More importantly, the letter meant that a Democratic president would have a chance to name a justice to the Supreme Court for the first time in fifteen years.

During those fifteen years, conservative ideas about the judiciary and the Constitution—especially originalism—enjoyed a great deal of prominence. To many in the liberal camp, the nomination of a new justice, and the confirmation hearings to follow, offered an excellent opportunity to put forth an alternative, progressive legal vision. To them, the point was not simply to confirm a Democrat but also to win the war over the interpretation of the Constitution.

Neither Obama nor the people around him wanted any part of such an undertaking. In the first place, that wasn’t the president’s style. He wasn’t looking to start fights that he didn’t need to have. Moreover, Obama himself had basically middle-of-the-road ideas about the Constitution, and he wanted a nominee with similar views. Finally, given the crowded legislative calendar, Obama and his team wanted a no-drama confirmation. His nominee should be confirmed with as little disruption as possible.

But who should it be? Back in Chicago, the week after the election, Obama had given his own list of four names to Craig and Axelrod:
Sonia Sotomayor, Elena Kagan, Diane Wood, and Cass Sunstein. A young staffer on the transition, Danielle Gray, now a member of Craig’s staff, had drawn up the first memos about the candidates. Now, about six months later, the list had changed slightly.

Cass Sunstein had been a colleague of Obama’s at the University of Chicago Law School, where he was perhaps the most accomplished, and certainly the most prolific, legal scholar of their generation. Sunstein moved to Harvard Law School and worked on Obama’s campaign, where he met and later married Samantha Power, a human rights scholar and activist who had also become an adviser to Obama. Sunstein’s interests were a lot like Breyer’s—administrative law, government efficiency in all its forms. As a result, Obama had appointed him to a little-known but powerful job running the Office of Information and Regulatory Affairs at the Office of Management and Budget. Republicans knew Sunstein was a possible Supreme Court nominee, so they put him through an arduous confirmation process; he still had not been confirmed by the full Senate for his OMB job when Souter stepped down. Sunstein’s eclectic views had the ability to offend both the left and the right, and he liked being where he was. Sunstein was removed from consideration.

Janet Napolitano was added. Like Bill Clinton before him, Obama had mused about the need for nonjudges on the Supreme Court. In this regard, the transformation on the Court had been enormous. Only one of the justices who decided
Brown
in 1954 had ever been a full-time judge. (Sherman Minton was a former senator who had served on the Seventh Circuit; Hugo Black had been a part-time judge on a police court in Alabama.) When Alito replaced O’Connor, for the first time in history all nine justices were former federal appeals court judges. The change owed much to the differences in the confirmation process over fifty years. When FDR appointed figures like Felix Frankfurter (law professor and activist who had spoken out in defense of Sacco and Vanzetti), William O. Douglas (head of the SEC), and Robert Jackson (attorney general), the Senate did little more than act as a rubber stamp. That was true, too, when Eisenhower nominated Earl Warren, then governor of California, to be chief justice. But as senators started to apply greater scrutiny, especially after Robert Bork’s defeat in 1987, presidents started opting for safe nominees whose prior records were largely devoid of political expression. That meant judges, not politicians.

Napolitano had an extraordinary résumé—governor of Arizona,
attorney general of the state, United States attorney as well. (Obama’s vetters took some sinister joy in noting, too, that one of Napolitano’s clients during her brief career in private practice had been Anita Hill. The possibilities for lively lunchtime conversations at the Court were duly noted.) But the prospect of scouring a lifetime of public appearances by a politician was daunting. Plus, Napolitano was off to a strong start as secretary of homeland security—a job that, if it could not win reelection for Obama, might lose it for him. Napolitano stayed on the list but, through no fault of her own, remained a problematic and unlikely choice.