True Faith and Allegiance

by Alberto R. Gonzales

  We waited until July 1, when Harriet called to inform me we had news of a vacancy on the court—and it was not as we had expected. When I arrived at the Oval Office, I was met by President Bush and members of the selection committee, except for Andy Card, who joined us by phone.

  Associate Justice Sandra Day O’Connor, the first woman ever to serve on the US Supreme Court, had announced her resignation. Appointed by President Reagan, Justice O’Connor had served for more than a quarter century. On the closely divided court, Justice O’Connor’s vote often carried the day. She was widely viewed as a moderate conservative justice, although some conservative groups believed she was too liberal on social issues. I was an admirer of Justice O’Connor, and I had asked her to administer my ceremonial oath of office as attorney general. I thought it fitting that the first female Supreme Court justice should swear in the first Hispanic attorney general in US history.

  Justice O’Connor’s resignation came unexpectedly, but we were ready nonetheless. This was the opportunity we all—especially President Bush—had been anticipating, the chance to nominate another conservative to the US Supreme Court.

  On the morning of the O’Connor announcement, our small selection group met with the president to discuss the selection process and the timing of the announcement of his nominee. At the conclusion of the meeting, the president asked me to stay behind, along with Vice President Cheney. For more than four years, there had been serious speculation about my appointment to the Supreme Court. Now there was a vacancy. That morning, however, the president told me, “I’m not going to put you on the court.” He said that I was doing a great job as attorney general, and while he was confident I would do great work on the court, he wanted me to stay with his team. The news was bittersweet. Despite the obvious obstacles and strong headwinds from some conservative groups the president would have encountered by nominating me, I must admit I was still somewhat disappointed. I loved my job as attorney general, and I never would have lobbied for a position on the court. But I would have served had I been asked.

  I told the president, “I owe you everything. You owe me nothing. I’m proud and grateful for the appointment as attorney general.” I returned to the Department of Justice and began putting together the team that would prepare the nominee for a confirmation hearing.

  While having dinner at a restaurant that evening, I said to Becky, “I have two important things to tell you.”

  Her interest was piqued. “Yes?”

  “First, I won’t be going to the Supreme Court.” Although Becky shared some of my disappointment, she was relieved and immediately caught the unspoken part of my statement: we could leave Washington at the conclusion of my service. Supreme Court appointments are for life, so had the president nominated me and had I been confirmed, we’d have to continue living in Washington. The media was already reporting that I was a leading candidate. So another benefit of my conversation with the president was that I could concentrate on doing my job.

  “And second, I’m going to Iraq.” I was headed there to confer with my Iraqi counterpart, visit with wounded soldiers in the hospital, and meet with DOJ employees and thank them for helping draft Iraq’s constitution and design a new legal system. For security reasons, I had limited the number of people who knew about the trip.

  “When?”

  “Tomorrow.”

  Although Becky was always anxious about my safety when I traveled, I think she was more comfortable with me going to a war zone than the Supreme Court.

  In the first few weeks after the O’Connor announcement, our committee had even more serious discussions about possible nominees. The clear signals from Harriet and Andy were that President Bush wanted to fill the O’Connor vacancy with a diverse nominee. A majority of our committee, however, worried that this may be the president’s only opportunity to nominate a strong conservative. I, too, urged the president to nominate the best candidate, irrespective of race or gender. Eventually the president decided to meet with the finalists identified by the selection committee.

  During the afternoon of July 18, we had several discussions with and without the president regarding potential Supreme Court nominations. The president made it clear that he wanted someone who would lead the court and move the court to the right. I told the president he needed to go with his gut. Who did he feel most comfortable standing with and introducing as his nominee? He told me he had decided on John Roberts. He felt Roberts had the right personality. He had been told by Senate minority leader Harry Reid that there were red lights for Luttig and others, but Roberts seemed acceptable to the Democrats, whose votes would be necessary to confirm the new justice. Andy Card called me later to let me know that the offer had indeed been made to John Roberts and he had accepted the nomination.

  On July 19, 2005, the president announced that he was nominating John Roberts to fill the O’Connor seat as the next justice of the US Supreme Court. A team of lawyers at the Justice Department immediately got busy helping to get Judge Roberts prepared for his hearing before the Senate Judiciary Committee. Then fate threw us a curve. On September 3, while the Roberts nomination was still pending, eighty-year-old Chief Justice William Rehnquist passed away after losing his battle against thyroid cancer. Suddenly, we had not one but two opportunities to influence the Supreme Court.

  Following Rehnquist’s death, Vice President Cheney suggested that Antonin Scalia be elevated to chief justice. The selection team knew that elevating Scalia would evoke a fight with the Judiciary Committee, and I understood that President Bush did not want to have a brutal battle over Supreme Court nominations. He depended on us to provide him with qualified, conservative nominees who could be confirmed without jeopardizing the president’s legislative agenda.

  I knew there would be a fight simply to get one conservative confirmed, so I asked why we would willingly ask for another battle with the Judiciary Committee when we could just as easily avoid it by selecting a new chief justice?

  The vice president pushed hard at first, but eventually he got comfortable with the possibility of John Roberts as chief justice. Moreover, we had heard through various sources that Justice Scalia himself believed that John Roberts was the best advocate who had ever appeared before him on the Supreme Court. Wrong or not, we regarded that as a signal he was okay with John Roberts as chief justice.

  Nevertheless, all options were on the table. In one meeting, President Bush asked me, “What do you think about Miguel Estrada as chief justice?”

  “I don’t think that is a good idea,” I said. “It would be a historic pick, but you need someone who has some gravitas within the legal community and would immediately have the respect of the older members of the court. Miguel is smart, but he is young. He does not have the influence you want. If you are serious about putting him on the court, you should elevate Scalia and then bring in Miguel behind him. But I can guarantee you that you will have two major fights if you do that.”

  The president decided that wasn’t worth it.

  On September 6, President Bush withdrew his nomination of John Roberts to replace Justice O’Connor, and instead nominated him to the Rehnquist seat as the new chief justice. Six days later, Roberts was seated in front of the Senate Judiciary Committee, and he negotiated the gauntlet with relative ease. He was confirmed by the full Senate as chief justice by a vote of 78 to 22.

  Following the nomination and confirmation of Roberts to fill the Rehnquist vacancy, our selection committee found itself in the same position as we were on July 1, that of having to fill the O’Connor vacancy. Since the president had already nominated a white male to the court, it became obvious to me that President Bush intended to select a diverse nominee for this second seat—particularly because the person was to fill the O’Connor seat. Complicating the situation was the media buzz that I was a leading candidate for the vacant seat, as well as the very public opposition to me from some conservative groups.

  The selection committee continued the consideration of vari
ous diverse candidates, but I and others on the committee believed the president should nominate the best candidate available. We had replaced one conservative for another in the chief ’s seat, but the O’Connor seat represented an opportunity to move the court to the right. To that end, I thought Judge Alito and Luttig were the best options.

  I arrived at the White House for our committee meeting in late September, along with Vice President Cheney, Andy Card, Karl Rove, and, I assumed, Harriet Miers to discuss names for the O’Connor seat. But Harriet was not at the meeting; instead, her deputy was there in her place.

  I was puzzled, but as he reported on Harriet’s record as a lawyer and expressed his views on Harriet’s political philosophy, I realized she was absent because the president wanted us to consider her as a potential nominee.

  I thought, What? What has happened?

  I couldn’t help but feel blindsided that the president might want to nominate Harriet Miers to the Supreme Court, but not because she wasn’t qualified. She clearly was by virtue of her training and legal experience. But for nearly five years, more than a dozen highly intelligent and politically savvy lawyers and I had been involved in the study and vetting of potential Supreme Court nominees, examining the legal careers and the opinions and beliefs of hundreds of people as possible nominees. Harriet’s name had never appeared on our lists. In fact, if the president thought so highly of her as a potential justice, I have to admit I was a little embarrassed that her name hadn’t appeared on any of our lists.

  While everyone in the White House and the Justice Department admired Harriet as a smart lawyer and a devout Christian, and her conservative credentials were beyond question, she had no judicial experience and little academic scholarship beyond her time at Southern Methodist University law school. I worried that her background would not be a plus when trying to sell Harriet to the Washington Federalist Society elite. Granted, because of her legal experience, her service as Texas State Bar president, her past leadership within the American Bar Association, and her many professional accolades, she would probably be rated qualified for the position by the ABA, but was she the president’s best available nominee? I worried how she would be viewed by the conservative base.

  Immediately after the White House meeting, I met privately with Andy Card. “Andy, what’s going on here? What happened?”

  “The president is seriously considering Harriet,” Andy replied.

  I understood that I was not entitled to know this information, but it bothered me that I was not even told about this new direction, even though I had led the work to develop the short list of potential nominees for the president from as far back as the transition in 2000. Some people later suggested that the reason I was not told may have been because my name was still on the president’s short list. Perhaps so, but given the extraordinary efforts to identify diverse options for President Bush, by this time, I had concluded that I had no shot at a nomination.

  Regardless, I expressed my surprise and a bit of frustration to Andy that as much as we all loved Harriet, if the president nominated her, we would not be going with our strongest choice. “She’s good,” I said, “but this may be the president’s last chance to put somebody on the court. He should go with the strongest candidate who can be confirmed.”

  Andy didn’t disagree, but he didn’t agree either. Apparently Andy had always been open to the idea of nominating Harriet, and Karl was definitely a fan of Harriet’s, as were Dan Bartlett and Ed Gillespie—all of whom apparently had told President Bush that Harriet would be a sound political choice.1

  Because of our friendship and the outside speculation about my potential nomination, this was a delicate spot for Andy. He suggested, “You should talk to the president directly if you believe he is making a mistake on this.”

  I knew Andy was right, but I was reluctant to talk with the president about the matter. It would be terribly awkward. Anything I said now would be viewed as an attempt to protect my own shot at the court by hurting my friend Harriet, the person I understood had recommended me as general counsel to Governor Bush after he was first elected as governor of Texas.

  Even more than the nomination itself—which was worrisome enough—I was concerned that the president was bucking his own allegiance to process. President Bush was at his best when he relied on a process for making decisions. That allowed him to be consistent in his actions, reduced the possibility of arbitrary choices, and shielded him from accusations that his decisions were based solely on politics. Relying on a process worked well for him, especially when he faced controversial or gut-wrenching decisions such as executions. As long as he relied on his established processes, he normally arrived at an outcome in which he felt he had made the right decision.

  We had a good, disciplined process in place to analyze and evaluate potential Supreme Court justices and to help the president avoid putting another Souter on the court. That process had provided four quality finalists and the ultimate selection of John Roberts. But now President Bush was deviating from the process. There was no interview of Harriet by our committee and no evaluation of her speeches or writings by the selection committee, only an accelerated vetting by her deputy. I worried about the outcome and reaction, but how could I tell the president that? Harriet was our good friend and I respected her.

  I went back to the Department of Justice and informed my senior staff about what was going on over at the White House. “I think the president is going to nominate Harriet.” All of them were surprised, and some were deeply disappointed. Rachel Brand, the assistant attorney general who had helped prepare and shepherd John Roberts’s nomination, was incredulous. Rachel, like several of the people on my staff at DOJ, had come over with me from the White House counsel’s office, and she had been involved in the selection process for several years. She was proud of the list of excellent potential nominees we had assembled, and she was equally well aware that Harriet had never been on any of our lists.2

  My chief of staff agreed with Rachel. Kyle Sampson believed he had a good pulse on how conservative leaders would react, and he urged me to intervene with the president. “You owe it to the president to discourage him from making this pick,” Kyle said. “Give him your best advice, and let him know that if Harriet hasn’t shown up on any lists in the past four years, that says something.”

  I wrestled over what I should do. Finally, I decided I couldn’t worry about what others thought. I was morally obligated to give my best advice to the president.

  On September 29, I went back to the White House to present my concerns to President Bush. It was one of the most uncomfortable meetings I’d ever had with him. We sat down in his office, and he began by telling me that he was looking at Mike Luttig, Sam Alito, Priscilla Owen, Harriet, and me. I told him that I was not there to talk about me, that I did not want to be considered. I felt I needed to say that to establish credibility about the advice I was about to give him. As awkward as it was, I gently but as clearly as possible attempted to candidly lay out all the reasons why Mike Luttig or Sam Alito would be a wiser choice than anyone else he had mentioned, including our friend Harriet.

  I told him that a Luttig or Alito pick would be a brave and bold choice. I reminded him that he told the cabinet to play “big ball,” not little ball, and a Luttig or Alito nomination would be the big choice. He said there were other considerations, and then he asked, “So you are in the camp that believes we should go with the best athlete?”

  “Yes,” I responded.

  We spoke for about half an hour, and he never once mentioned me going on the court. To the contrary, we talked about my future plans for the DOJ, which told me that I was not a real candidate for the court. I knew the president, and early in the conversation, I sensed that he had already made up his mind.

  So I said in conclusion “If you nominate Harriet, I will support her and I will go out and fight for her confirmation,” I said. “But my job is to tell you what I think.”

  President Bush thanked me
, but I could tell what he was going to do. He was going to nominate Harriet. I didn’t argue with him, because he was the one elected to make these decisions, and he undoubtedly had other factors to consider. In my mind, Harriet was qualified to serve on the court, but I disagreed that she was the president’s strongest choice, and a nominee who could best cement the president’s legacy.

  I went back to my staff at the DOJ and told them, “Okay, I told him. But I think it is a done deal. I think he is going to nominate Harriet.”

  Sure enough, four days later, on October 3, President Bush nominated Harriet Miers to fill the O’Connor seat on the US Supreme Court. At the announcement, President Bush said, “I’ve known Harriet for more than a decade. I know her heart. I know her character.”3 The media did not seem to care about Harriet’s heart, only her lack of experience. Some reporters and political pundits openly derided Bush’s decision. Since Harriet’s position prior to becoming White House counsel had been White House staff secretary—an important but little known role—many people were confused about her responsibilities.

  “Bush nominated his secretary to the Supreme Court?” was typical of the derisive nature of the comments. While not unexpected, the remarks about the president and Harriet angered me.

  Karl and others in the White House were convinced that conservatives would trust the president’s judgment and rally around Harriet Miers. Many didn’t. Even conservative members of the media such as Charles Krauthammer and George Will opposed Harriet’s nomination.4 Harriet was unknown in most conservative legal circles, so I wasn’t surprised that they didn’t support her.

  In hindsight, the nomination of Harriet Miers should not have come as a surprise to me. The decision was vintage Bush. He really wanted to put another woman on the Supreme Court. Harriet had been his personal lawyer; she was a close friend, and she had been loyal to the president. More important, even though she had no judicial record, the president believed (and so did I) she was capable of doing the job by virture of her education, training, and experience. He now wanted to honor her, much as he had honored me when he had appointed me attorney general, or Condi as secretary of state, and Margaret Spellings as education secretary. I should, however, have been more aggressive in pointing out to the president the challenges represented by a Miers nomination, and why Harriet’s nomination was likely to run into strong headwinds—but I wasn’t. I was so concerned about appearing self-serving or self-aggrandizing, I failed to do my job. That was a mistake.