The Nine (46 page)

Gathered in the East Room on May 9, 2001, the eleven nominees “looked like America,” as the Clinton-era phrase had it. There were two African Americans, including Roger Gregory, whom Clinton himself made a recess appointment to the Fourth Circuit after Senator Jesse Helms blocked a full-fledged appointment, and Barrington Parker Jr., a Clinton appointee to the district court whom Bush was promoting to the Second Circuit. There were also three women—Edith Brown Clement, Deborah Cook, and Priscilla Owen—and a Hispanic, Miguel Estrada, a brilliant Honduran immigrant who was tapped for the D.C. Circuit. “A president has few greater responsibilities than that of nominating men and women to the courts of the United States,” Bush said. “He owes it to the Constitution and to the country to choose with care. I have done so.”

Two weeks later, however, Senator James Jeffords, a Vermont Republican, created a political upheaval by shifting his alliance to the Democratic Party, thus transferring control of the evenly divided body away from the GOP. Suddenly, less than a year into Bush’s presidency, the Democrats were running the agenda in the Senate. As far as Bush’s judicial nominations were concerned, the change meant that Patrick Leahy, a committed liberal, also from Vermont, would take over from Orrin Hatch, the Utah conservative, as chairman of the Judiciary Committee. Under Hatch, all eleven of Bush’s nominees could have been assured prompt hearings and all but certain confirmation. But Leahy decided to slow down the process, especially for some of the more controversial nominees, including Owen and Estrada.

A justice of the Texas Supreme Court, Owen had staked out a position on the far right that had sometimes put her in conflict with Alberto Gonzales himself. Estrada had glittering credentials—Harvard Law School, followed by an acclaimed career as a federal prosecutor, an assistant to the solicitor general, and a top corporate lawyer—but he also had a prickly personality and a reluctance to share many of his views about constitutional law with the committee. Because Estrada was tapped for the august D.C. Circuit, where he would be a likely choice as first Hispanic on the Supreme Court, Democrats let his nomination linger in limbo.

In short, after the Democratic takeover of the Senate, the atmosphere around Bush’s judicial nominations soured. Republicans, especially those in the White House, thought their gestures of goodwill, like the nominations of Gregory and Parker, had counted for nothing. Democrats thought Bush, with just a few exceptions, was choosing conservative extremists. Positions hardened on both sides. Owen’s nomination was stalled for years. After a similar delay, Estrada withdrew his name in frustration. Others on Bush’s original list of eleven nominees eventually did win confirmation, including the president’s choice to fill another vacancy on the D.C. Circuit, John G. Roberts Jr.

John Roberts was not genetically engineered to be a justice of the Supreme Court, but it often seemed that way. His career trajectory was so smooth, his progress so steady, his reputation so exalted, his personality so winning, that he seemed at times preternaturally favored for that ultimate destination.

Roberts was born in Buffalo on January 27, 1955, and raised in Indiana, where his father was an executive in the steel industry. Young John was captain of his high school football team and the best student in his high school class. In 1976, he graduated from Harvard College summa cum laude; three years later, he received his degree magna cum laude from Harvard Law School, where he was managing editor of the
Law Review
. His colleagues on the
Review
included Justice Ginsburg’s daughter, Jane. Both the college and the law school still bore the scars of the politically tumultuous 1960s, but Roberts managed to excel without making enemies, a skill that would serve him well. His first judicial clerkship was with Henry J. Friendly, a legendary judge on the Second Circuit whose chambers in New York were a frequent destination for especially cerebral graduates of Harvard Law. Friendly came out of the moderate Republican tradition that included such judges as Learned Hand and John Marshall Harlan II, who were Souter’s great inspirations on the bench.

Roberts decided his future was in Washington, not New York, and he moved to the capital just in time to join in the Reagan revolution. He arrived in William Rehnquist’s chambers as a law clerk in the summer of 1980, when the young associate justice was a relative outsider on a Supreme Court that was still dominated by the liberal William Brennan. But conservatives were ascending, and Roberts thrived. After his clerkship, he spent four years in the office of Reagan’s White House counsel, where he earned a reputation for brilliance and good humor. His plainspoken memos, preserved in the Reagan Presidential Library, display wit, common sense, and conservative politics in equal measure. For example, regarding a proposal by Chief Justice Warren Burger to lighten the workload of the Supreme Court by the creation of a new intermediate appeals court above the existing circuit courts, Roberts made this tart observation: “While some of the tales of woe emanating from the Court are enough to bring tears to the eyes, it is true that only Supreme Court justices and schoolchildren are expected to and do take the entire summer off.”

With perfect timing, Roberts left the Reagan White House shortly before the administration nearly imploded in the Iran-Contra scandal, and he established himself as a successful appellate litigator at the distinguished Washington firm of Hogan & Hartson. With the election of the first President Bush in 1988, Roberts returned to government, this time as the principal deputy to Solicitor General Kenneth Starr. Roberts’s easy manner, combined with his vast intellect, made him a favorite of the justices, and he ultimately came to argue thirty-nine cases, far more than any other nominee in the Court’s recent history. Such was Roberts’s reputation that in 1992, at only thirty-seven, in what would be the last year of the 41st presidency, he was nominated to the D.C. Circuit.

Then, for the first time in his life, Roberts came up against something he couldn’t overcome. The Democrats who controlled the Senate sensed victory in November and essentially shut down the confirmation process. Even then, Roberts looked like Supreme Court material, so the Democrats were especially pleased to block his promising judicial career. With Bush’s defeat in 1992, Roberts returned to Hogan & Hartson and, in all likelihood, a career of gilded obscurity in corporate law.

Roberts’s failure to win confirmation to the D.C. Circuit in 1992 turned out to be a lucky break. For the next eight years, he developed perhaps the best Supreme Court practice in the United States, mostly representing large corporations in business disputes with one another or with the government. Almost every year, Roberts had several arguments before the justices, and he also filed a steady stream of cert petitions and amicus briefs. (Not incidentally, he also made approximately a million dollars a year.) Roberts generally steered clear of the political controversies of the Clinton years, declining to participate in any investigations of the White House and refusing even to become a prominent talking head about impeachment. His contribution to Bush’s legal strategy in the Florida recount was important but low profile. A natural reticence and skill at avoiding enemies kept him largely out of public view. Still, among his former colleagues in Republican politics and law, Roberts retained a golden aura, even without having established a public record of partisanship. Miguel Estrada used to advise young lawyers coming out of the solicitor general’s office, “Go work for John G. Roberts. The ‘G’ is for God.”

If Roberts had been confirmed in 1992, of course, he would have amassed an extensive paper trail of controversial decisions on the D.C. Circuit by the time George W. Bush took office in 2001. Instead, Roberts had only enhanced his reputation by excelling as an advocate. Again, once Democrats established control of the Judiciary Committee in the middle of the year, they tried to stall Roberts’s second nomination as they did his first nine years earlier. But the Republicans retook control of the Senate in 2002, and Hatch promptly moved Roberts through the process early the following year. On May 8, 2003, he was confirmed by the full Senate on a voice vote, without opposition. Before Roberts had even taken his seat as a federal appeals court judge, his friends in the White House counsel’s office started compiling the dossier that put him on the short list for the Supreme Court.

In 2000, Bush had campaigned as a “compassionate conservative” and “a uniter, not a divider,” pledging to surmount the partisanship that had consumed Washington during the Clinton years. But in the 2004 race, Bush shifted to more ideological priorities, hoping to motivate a conservative base, mostly evangelical Christians, that had felt slighted during the earlier contest. The issues that mattered most to them were all on the Supreme Court’s agenda, and so the Court played a more central role in Bush’s second campaign.

Indeed, the president’s courtship of evangelicals led to a curious moment in the campaign. During Bush’s second debate with John Kerry, the president answered a question about possible Supreme Court appointments by attacking the
Dred Scott
decision, which he characterized as “where judges years ago said that the Constitution allowed slavery because of personal property rights. That’s a personal opinion; that’s not what the Constitution says.” Decided in 1857, the
Dred Scott
case has been obsolete for decades because it was overruled by the passage of the Thirteenth and Fourteenth Amendments after the Civil War. Though many observers in the mainstream media were puzzled by Bush’s invocation of the ancient and irrelevant precedent, it served an important purpose. Within the antiabortion movement,
Roe v. Wade
is often described as the
Dred Scott
of modern times—a monstrous case that deserves reversal. In coded language, Bush used the debate to signal his agreement with that view.

So the conservative base came into 2005 expecting payback, in the form of thoroughly acceptable judicial appointments. Just after the election, those activists first made their presence felt by punishing Arlen Specter for his comments about
Roe v. Wade
. In the months that followed, they pushed the Senate to confirm many of Bush’s long-stalled judicial nominees. (Priscilla Owen, the Texas justice, had still not received a vote four years after she was named in Bush’s initial group of eleven nominees.) During Bush’s first term, Democrats had used Senate rules to force Republicans to muster sixty votes, rather than just a majority, on Bush’s more controversial judicial nominees. These Democratic tactics amounted to filibusters against the would-be judges, and conservative activists like Jay Sekulow began pressing the Senate to ban the use of filibusters to stop judicial nominations.

In the spring of 2005, the Senate nearly imploded over the issue of judicial confirmations. The filibuster rule amounted to the principal difference between the rules of the House of Representatives and the Senate; in the House, a simple majority could essentially force through any legislation it supported, while the Senate required a three-fifths majority, or sixty votes. With only fifty-five Republicans in the Senate, the filibuster rule meant that the minority Democrats could delay or even stop any law or nomination, if they could stay united. The filibuster rule was designed to push senators toward compromises and bipartisanship. Conservatives, including many Republican senators, began arguing for a change in the Senate rules, so that a simple majority could bring nominations to a vote. The proposed change in the venerable Senate procedures was so great that the proposal was nicknamed the Nuclear Option. For his part, Bush implicitly endorsed the change in his State of the Union address, insisting, to huge applause in the chamber, “Every judicial nominee deserves an up or down vote.”

At the last minute, though, with the Senate at the nuclear brink, a compromise put off the conflagration, at least for the time being. A bipartisan group of fourteen moderate Senators, meeting in Senator John McCain’s office on May 23, 2005, brokered a deal where some of Bush’s long-delayed nominees (like Owen) would finally get their up or down votes and thus be confirmed. In return, the Republicans in the group agreed not to change the Senate’s rules—yet. Under the deal, the so-called Gang of 14 announced jointly that “nominees should only be filibustered under extraordinary circumstances,” a term that was carefully left undefined.

The ultimate battle had been postponed, but the political message was unmistakable—that the confirmation of very conservative judges was a central concern of the Republican Party. The compromise essentially left the moderates of both parties in charge of determining whether a filibuster could ever be mounted; since these senators generally disdained filibusters, and even the Democrats among them cared less about thwarting Bush’s judicial agenda, the compromise amounted to a victory for the conservatives.

Five weeks later, O’Connor announced her retirement. By that point, it was clear that Arlen Specter and other old-timers were reading an obsolete script for modern confirmation battles. In 1987, Robert Bork was defeated because he was too conservative for a Democratic Senate, and Specter still believed that the current Senate might vote down a nominee who was too conservative. In truth, the bigger risk for a George W. Bush nominee was if he or she was not conservative enough. To put it another way, Bork couldn’t be confirmed
because
he opposed
Roe v. Wade
; in 2005, a nominee couldn’t be selected
unless
he or she opposed
Roe v. Wade
.

O’Connor submitted her resignation on Friday, July 1, just before the Fourth of July holiday weekend. By the beginning of the next workweek, the conservative base started making demands about her replacement. The first: anyone except Alberto Gonzales.