The Roberts Court

On July 1, 2005, with the Supreme Court having finished another term, Justice Sandra Day O’Connor announced her retirement. Weeks later, Chief Justice William Rehnquist, suffering from thyroid cancer, died. Those were the first vacancies to occur in 11 years, the longest stretch without an opening in the history of the nine-member Court. We know what happened next: President Bush named John Roberts to replace Rehnquist and Samuel Alito to succeed O’Connor, and the Senate confirmed them both.

The “inside story” of the two appointments and what they signified–“a struggle for control” of the Court–is what Jan Crawford Greenburg superbly tells in this prodigiously reported book, informed by hundreds of interviews, including of nine justices. She describes a selection process in the Bush administration that was both “brilliantly executed and catastrophically blundered” (see Harriet Miers). And she concludes that Bush, “despite all his missteps,” achieved his goal of moving the balance of the Court to the right.

Greenburg, who since 1994 has covered the Court, first for the Chicago Tribune and now for ABC News, places the story of the Roberts and Alito appointments within the larger context of the four-decades-long effort by Republican presidents to change the jurisprudential direction of the Court. Before Bush took office, Republican presidents had named all but two of the 12 new justices to take their seats since the end of the liberal Warren Court in 1969. But the Burger Court (1969-86) was, as one writer described it, “the counterrevolution that wasn’t.” Indeed, it was the Burger Court that, in Roe v. Wade, invented a constitutional right to abortion, a case that has troubled confirmation politics ever since. And the Rehnquist Court, notwithstanding that seven of its members were appointed by Republican presidents, was, writes Greenburg, “jurisprudentially unmoored,” often failing in critical cases to take a conservative path.

Greenburg recounts how the justices, beginning with O’Connor in 1981, were chosen. O’Connor was a Reagan pick, as were Antonin Scalia and Anthony Kennedy. David Souter and Clarence Thomas were selected by George H.W. Bush. Of the five, O’Connor, Kennedy, and Souter have, in numerous ways, disappointed conservatives, while only Scalia and Thomas have consistently won their praise. Not surprisingly, when George W. Bush ran for president in 2000, he pointed to Scalia and Thomas as the kind of justices he’d appoint. The question since the outset of his presidency has been whether, should vacancies occur, Bush would appoint jurists with a conservative approach to judging–or add to the conservative disappointment.

Greenburg reveals a White House fully aware of the mistakes made by past Republican presidents in their selection processes–and also one preoccupied with “diversity.” Bush didn’t want to repeat the mistake of unpreparedness committed by his father, who lacked a list of well-researched candidates to choose from in 1990 when William Brennan retired and, not wanting to delay, hastily chose the obscure Souter. Thus, early in his first term, Bush instructed his staff to develop a list of prospective justices and to conduct extensive background research on each one.

Bush aides assumed that Rehnquist would probably be the first to step down, and with that in mind, they kept an evolving short list of well-researched candidates. In early 2005, Roberts, a federal circuit judge in Washington, was at the very top, judged fit for associate justice but also chief justice. He was thought to be the best when measured by several yardsticks, including judicial philosophy.

As it happened, it was not Rehnquist but O’Connor whose seat first came open. Having previously thought about having to replace the Court’s first female justice, Bush aides had cast “a wide net,” writes Greenburg. But they’d found “no ideal woman or minority candidate.” And upon further review, that remained the case. Assuming that Bush would eventually get the opportunity to replace Rehnquist, and could “add to the Court’s diversity at that point,” they decided to “put questions of race and gender aside and focus solely on judicial philosophy.” So it was that Bush wound up picking Roberts, the lawyer his aides regarded most highly.

That decision annoyed O’Connor, who had wanted a woman to succeed her (and who gained her appointment in part because she was a woman, Reagan having promised to name the first female justice). But as we know, Roberts didn’t take her seat. When Rehnquist died–mere hours before his nominee was to go before the Senate Judiciary Committee–Bush now had another seat to fill, and he quickly decided to withdraw Roberts for O’Connor’s seat and nominate him as chief justice.

In Bush’s view, reports Greenburg, Roberts had only grown in stature during his six weeks as a nominee. It was a case of the best getting even better.

With O’Connor’s successor still to be determined, Bush moved away from his short list. Andrew Card was Bush’s chief of staff, Harriet Miers his White House counsel, and William Kelley his deputy White House counsel. Writes Greenburg: “Card . . . told Miers and Kelley that Bush insisted on nominating a woman this time. ‘No white guys,’ Card said.”

To their credit, the lawyers–including Miers, who had worked for Bush in various capacities over the previous dozen years–urged him to pick the person second only to Roberts on the list, the indubitably but apparently now damnably male Samuel Alito.

“They insisted he was the most qualified choice,” Greenburg writes. They also knew that there were still very few “diversity candidates.” In fact, they “couldn’t come up with one who both was confirmable and the kind of judicial conservative” Bush wanted on the Court. One reason the list was “meager,” Greenburg explains, is that during the past five years, Senate Democrats had succeeded in “eliminating candidates who would have been top contenders”–women and minorities whose nominations to circuit courts they blocked, or else approved, but only on condition that they not be nominated for the Supreme Court.

So it was that Card effectively created a short list of one when he asked Kelley (unbeknownst to Miers) to research his boss, thus committing, as Greenburg writes, “an egregious managerial mistake.” The vetting, such as it was, failed to anticipate the broad and unyielding objection to Harriet Miers’s nomination on the part of conservatives, whose support no Republican nominee can do without and still hope to be confirmed. Nor did the vetting yield what quickly became apparent to fair-minded observers in both parties, and would have been fatal had there been a confirmation hearing–that, as Greenburg says, Miers “was ill-prepared and uninformed on the law,” especially constitutional law.

Concluding her visit with Sen. Tom Coburn (R-Oklahoma), Miers asked him, “How’d I do?”

Coburn replied, “You flunked.”

Greenburg reports that, even as the prospect for Miers’s confirmation moved from bad to worse, Bush wanted to fight for her, even if that meant duking it out with conservatives. “But what Bush hadn’t counted on,” Greenburg says, “was Miers letting him down.” He thought she would be a good justice because he thought her character would prevent her from drifting to the left. But first she had to be a good nominee, something Bush had not considered. And it was now obvious “she wasn’t going to learn con law in three weeks and pass a fluency exam.”

One is compelled to ask: She let him down? It’s hard not to feel sympathy for Harriet Miers, who was asked to assume a role that simply wasn’t right for her.

Greenburg shrewdly observes that Bush’s insistence on a “diversity nominee” for the O’Connor seat, and the Senate Democrats’ success in eliminating so many female and minority candidates for the Court, placed the president in a situation where he wound up choosing someone who was “such a bad nominee that she couldn’t get confirmed.” That, in turn, gave Bush a second chance, and this time he surrendered his demand for diversity and focused on judicial philosophy, quickly settling on Alito.

“That Bush emerged from the Miers fiasco with Alito, the best possible choice according to his legal team,” writes Greenburg, “was a remarkable twist.”

Bush may have the opportunity to name another justice or two. But to this point in his presidency, he has succeeded in the selection of justices to an extent none of his predecessors did. After all, neither Bush’s father, nor Ronald Reagan, nor Richard Nixon for that matter, filled Supreme Court vacancies with his best possible choices.

To be sure, it’s too early to say that Bush has, indeed, moved the balance of the Court to the right through his appointments. It will take a few more years before that can be said with confidence. (And decisions this term, on the use of race in school assignments, and on the regulation of abortion, will be ones to watch.) But Bush–despite, or rather, because of the dumbfounding detour of the Miers nomination–did about as well in picking justices who might bring about a rightward shift in the Court’s balance as one can imagine.

Supreme Conflict provides an engaging and fair-minded rendering of this critical achievement.

Terry Eastland is publisher of THE WEEKLY STANDARD.