The Nine

by Jeffrey Toobin

  The answer was straightforward. In 2000, during his brief career on the Texas Supreme Court, Gonzales had participated in a series of cases known as In re Jane Doe. Bush, then governor, had signed a law that required minors to obtain the consent of their parents if they wanted an abortion. As required by United States Supreme Court precedent, the law contained an exception that allowed some girls—abuse victims, for example—to proceed with the permission of a judge rather than a parent. Interpreting this so-called judicial bypass provision, Gonzales joined a 6–3 majority on the court in allowing a seventeen-year-old to go to a judge rather than her parents. The conclusion obviously troubled Gonzales, but he felt compelled to follow the law. “While the ramifications of such a law may?…be personally troubling to me as a parent, it is my obligation as a judge to impartially apply the laws of this state without imposing my moral view on the decisions of the Legislature,” he wrote.

  The conclusions of the Texas court in the abortion case were narrow. None of the judges, including Gonzales, addressed whether Roe should be affirmed or overturned. The opinions didn’t interpret the U.S. Constitution at all. The only issue was how one specific Texas law applied to one girl. But those caveats counted for nothing. Gonzales’s career—including four years of loyal service in George W. Bush’s White House—also counted for nothing. Fairly or not, accurately or not, the decisions branded Gonzales as unreliable on abortion, and that was enough for conservatives to veto him as a nominee to the Supreme Court. Such was the power of movement conservatives—and such was the importance of abortion to them—that Bush had no choice but to eliminate his good friend from consideration. The president never wavered in his admiration for Gonzales and never passed up an opportunity to say kind things about him. But he also never seriously considered him for a seat on the Supreme Court.

  21

  RETIRING THE TROPHY

  In the sticky heat of a summer evening, Theodore Olson surveyed with evident and understandable satisfaction the guests assembled in his spacious backyard. For years, Ted and Barbara Olson, the first couple of the conservative legal world, had dreamed of a night like this one. A Californian who came east to be an assistant attorney general under Reagan, Ted went on to argue Bush v. Gore and, as a reward, to serve four years as Bush’s solicitor general. His wife, a former Republican Senate staffer, had been a vitriolic and telegenic critic of the Clintons and the author of best-selling books attacking their morals, politics, and marriage. The Olsons’ wedding in 1996 had drawn such conservative luminaries as Clarence Thomas, Robert Bork, and the couple’s close friend Kenneth Starr. If Hillary Clinton’s vast right-wing conspiracy had a headquarters, it was their estate in Great Falls, Virginia. Together the Olsons had dreamed of a true conservative majority on the Supreme Court, and now the moment had come. And the likely next justice was among the guests that night.

  With the moment of triumph so close, there was a note of poignancy to the evening, because Barbara was not there to share in the celebration. She had been a passenger on the plane that crashed into the Pentagon on September 11, 2001. Her courageous phone calls to her husband in the moments before she died provided important clues to what happened on that terrible day. Still, there was little doubt that she would have approved Ted’s raiding their famous wine cellar for this special occasion.

  It was a more polished crowd than one would find at, say, the Colorado Springs headquarters of Focus on the Family. The partygoers eschewed the rhetoric associated with the likes of Jay Sekulow or Manuel Miranda. But for all the differences in class and temperament in the conservative movement, the agenda for the Supreme Court was remarkably consistent across the board. Reverse Roe. Expand executive power. Speed executions. Welcome religion into the public sphere. Return the Constitution from its exile since the New Deal. All of these goals seemed increasingly within reach.

  The ostensible reason for the party was to salute David Leitch, who was leaving his position as deputy White House counsel to become general counsel to the Ford Motor Company. The gathering was modest—perhaps twenty-five people—and it served as a reminder of what a small world the Washington conservative legal elite was. Leitch himself had an almost comic number of connections to the likely nominees. He had been a law clerk for J. Harvie Wilkinson III, had worked for Michael Luttig in the first Bush Justice Department, had become Roberts’s protégé at Hogan & Hartson, and had then served as Gonzales’s deputy in the White House.

  The candidates assembled that night began with Olson himself. He had a place on the short list, but no one, including Olson, thought he had much chance. He had never been a judge, his political activities had made him a Democratic target, and besides, at sixty-four he was probably too old.

  Al Gonzales was there, receiving commiseration for the abuse he was taking from the movement conservatives—some of whom were also among Olson’s guests. Gonzales was technically still a possibility, but the conservative assault had taken its toll. He, too, looked like a very long shot.

  Harvie Wilkinson, the courtly former chief judge of the Fourth Circuit, remained in the running. He was telling stories to his fellow guests in the same soft Virginia accent as that of his mentor, Lewis Powell. The O’Connor seat was vacant, but everyone knew Rehnquist probably wouldn’t last much longer, so many in the White House were planning for this first nominee to move up to chief justice. That was good for Wilkinson because he had the patrician charm of a Southern politician, a valuable skill for the more public duties of a chief. Still, Wilkinson was already sixty years old and, worse, he had the dreaded taint of moderation about him.

  There were no such worries about Michael Luttig, whom no one ever called a moderate. Although Luttig was invited, he didn’t make it to Olson’s party, and his nonappearance reflected a problem with his candidacy: he was awkward and unsocial. Still, if anyone was the favorite for the job at this point, it was Luttig, Wilkinson’s colleague on the Fourth Circuit. Luttig was just fifty years old, the perfect age, a former Scalia clerk and a judge since 1991, with a network of former law clerks pressing hard for his appointment. Luttig still lived in Vienna, Virginia, a Washington suburb, and he remained well wired in the capital. He had been a groomsman at Roberts’s wedding.

  Like Olson, Luttig had suffered a random tragedy. In 1994, his parents were the victims of a carjacking in their driveway in Tyler, Texas. His father was killed, and his mother survived only by playing dead. During the trial of his father’s killers, Luttig moved his chambers to Tyler and testified for the prosecution in the penalty phase. In 2002, Napoleon Beazley was executed for the murder.

  John Roberts was there, too, of course, hanging back as was his custom, smiling at other people’s jokes, taking in the scene. In the sticky heat, Olson was wearing a Hawaiian shirt and shorts, but Roberts never removed his blazer and tie.

  Anticipating that Rehnquist would resign, Bush’s advisers had prepared intensively for the end of the Court’s term in June. In May, all of the leading candidates were invited to Washington for interviews with senior administration officials. Luttig, Roberts, Wilkinson, and two others—Samuel A. Alito Jr., the veteran judge on the Third Circuit, and Edith Brown Clement, a much newer appointee to the Fifth Circuit—were questioned by a panel that included Gonzales, Andrew Card, Karl Rove, the president’s political adviser, Cheney, and Lewis Libby, the vice president’s chief of staff.

  Clement was a surprise, because she had only joined the appeals court bench in 2001, after a decade as a federal trial judge in New Orleans. The presence of such an obscure figure in the final group—she had not written a single opinion of note—illustrated a problem with Bush’s stated goal of diversity when it came to Supreme Court appointments. Several Republican women appointed to the federal bench—like Edith Jones on the Fifth Circuit, the just-confirmed Janice Rogers Brown on the D.C. Circuit, and Priscilla Owen, also on the Fifth—were incendiary figures, likely to ignite filibusters among Democrats. Others could be dismissed as closet moderates. Joy Clement, as she wa
s known, had charm in abundance and was well regarded for her conservative speeches on the after-dinner circuit. But she clearly lacked the stature of her competitors.

  Bush remained largely detached from the process until he returned from Europe in the second week in July. He had taken the candidate memos with him to study, but he prided himself on his ability to size people up in person. His aides spoke often of his “intuitive” style of managing, which relied more on gut reactions than detailed research. (After first meeting President Vladimir Putin of Russia, Bush said, “I looked the man in the eye…. I was able to get a sense of his soul.”) On July 14 and 15, several of the candidates were ushered in to see the president through the East Wing of the White House to make sure that they were not seen by the reporters who monitored the west gate. Wilkinson, Clement, Alito, Luttig, and Roberts all spent about an hour with the president. Their conversations, though, were little more than chitchat. Bush asked them all about their families, several about their exercise routines, and Wilkinson about Yale, where the president had been his contemporary. There was little discussion of judicial philosophy, and none at all of individual cases. (Recalling his interview with Bush, Luttig later complained to a friend, “It was totally nonsubstantive”—and thus revealed why he didn’t get the job.)

  Still, this was a time of big ambitions, even grandiosity, at the White House. When it came to appointments, Bush’s advisers liked to brag, “We only hit home runs.” In the first summer of his second term, Bush still had a sense that his presidency would bring dramatic changes to the country and the world. Right after his reelection, he had said, “I earned capital in the campaign, political capital, and now I intend to spend it. It is my style.” In his second inaugural address, Bush had announced, “It is the policy of the United States to seek and support the growth of democratic movements and institutions in every nation and culture, with the ultimate goal of ending tyranny in our world.” In the domestic sphere, Bush had committed himself to transforming the most venerable and sprawling of all federal programs, Social Security. The appointment of a Supreme Court justice, in Bush’s view, had to represent a similarly large gesture.

  That doomed Wilkinson. Bush’s aides condemned the Virginian by calling him “a cautious choice.” At that moment, the Bush presidency was not about caution. The president liked Clement a great deal, but he was troubled by her lack of a substantial judicial record. In addition, an estranged former law clerk of Clement’s was threatening to go public with purported tales of racially and religiously insensitive comments by the judge; the controversy might be disruptive, because there was so little else to say about her. Alito struck Bush as solid, but he had few passionate supporters (or detractors) in the White House or Washington generally. (Alito, who lived outside Newark, was not invited to the Olson soirée.)

  In the end, the choice came down to Roberts or Luttig. Roberts had been teaching a summer class in London, and he came back to Washington for his interview with Bush on July 15, then returned overseas. He was blessed with supporters in the right places. Leitch revered Roberts, as did William Kelley, a professor at Notre Dame Law School who was Harriet Miers’s successor as deputy White House counsel. Brett Kavanaugh, who was now Bush’s staff secretary, and Christopher Bartolomucci and Bradford Berenson, who had left the White House, all weighed in heavily on Roberts’s behalf. Most important, Bush immediately took to Roberts in their interview. The president had radar for anyone who put on airs, and Roberts’s Midwestern reserve played well with Bush. The fact that Roberts had just adopted two young children especially impressed the president.

  Still, Luttig was the conservative’s dream choice—probably smarter than his mentor Scalia, twenty years younger, and very likely more conservative. He had been a hero to the movement since 1991, when as a Justice Department official he had steered Thomas through his agonizing confirmation hearings. Luttig’s long history of writing conservative judicial opinions made him the opposite of a stealth nominee; he was a guarantee. Much more than Roberts, Luttig had paid his dues to the cause.

  Luttig had one important ally on the White House staff—who was also a Roberts skeptic, if not an outright detractor. Harriet Miers had been White House counsel for only a few months, replacing Gonzales when he was named attorney general. She did not come out of the Washington legal establishment that seemed so enamored of John Roberts. All she heard about Roberts was…Trust us, trust us, he’s a real conservative. But that wasn’t enough for Miers. She was a lawyer who believed in facts, not opinions. Her favorite candidate was Sam Alito, who had written dozens of judicial opinions that left no doubt in Miers’s mind that he belonged on the Supreme Court. As for Roberts, Miers wanted the same level of proof that he was a Bush conservative.

  Miers was so skeptical of Roberts that she summoned Leonard Leo, the executive vice president of the Federalist Society, to make the case for him. Leo, along with Boyden Gray, Jay Sekulow, and Ed Meese, served as the principal emissaries between the White House and the conservative movement on Supreme Court nominations. Even among that quartet, Leo was known as the monitor of the various nominees’ ideological purity. Miers wanted Leo to convince her that Roberts was a true conservative. Leo assembled a selection of Roberts’s writings from the Reagan White House and his decisions from the D.C. Circuit and walked Miers through them, but she still had her doubts. “Well,” Miers said, signaling the direction the search was going, “I hope you’re right.”

  Miers had worked in the White House, largely in obscurity, throughout the first term. She came to Washington from her law practice in Dallas to be Bush’s staff secretary, an important but largely ministerial job that involves controlling the paper flow in and out of the Oval Office. The job suited her meticulous temperament and deep loyalty to Bush. The only substantive responsibility was examining the recommendations that came to the president and determining whether they comported with his ideology and record. To do her job, Miers felt she almost had to know Bush so well that she had, in essence, to become him.

  No one was better suited to this self-denying task than Miers. For one thing, no one worked harder. Her red Mercedes (with Bush bumper stickers going back to his gubernatorial races) was often the first one in the White House parking lot in the morning and the last one out at night. After two years as staff secretary, she moved on to be deputy chief of staff for policy, another job where she had to test initiatives from the cabinet departments for their loyalty to the Bush program. Miers had few known views of her own but a fierce allegiance to the president, both personally and politically. Her question about John Roberts was: What has he ever done to pay his dues to the cause?

  Dick Cheney had similar questions. The vice president was the only figure in the White House who was touting Scalia as a possible replacement for Rehnquist, whose departure seemed imminent. As became clear in their duck-hunting expedition, Cheney and Scalia had been friends since the Ford years. (The lawyers on the White House staff regarded a possible Scalia promotion as an unnecessary additional confirmation fight for a man who, at age sixty-nine, probably would not serve for very long anyway.) Cheney was also the guardian of ideological purity at the White House and, like Miers, he needed some proof that Roberts was actually as conservative as his backers promised he would be.

  Their doubts may have been overcome in any case, but then a fortuitous coincidence sealed Roberts’s nomination. On July 15, 2005, the day of his interview with Bush, the D.C. Circuit upheld the administration’s plans for the use of military tribunals for the prisoners held at the navy base at Guantánamo Bay, Cuba. In 2004, of course, O’Connor’s scathing rebuke to the administration in the Hamdi case had mandated that the detainees receive some sort of due process of law. In Hamdan v. Rumsfeld, Roberts joined a three-judge panel that approved the Bush plan that had been developed in response to O’Connor’s scolding. In that case, it was clear that the administration’s procedures did not comport with the Geneva Conventions, which required that all prisoners receive trials “
by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” But Roberts and his colleagues said the Bush administration did not have to comply with the international treaty, because the “Geneva Convention cannot be judicially enforced.”

  No issue mattered more to Cheney (and to Bush and, thus, to Miers) than preserving the power of the president, especially with regard to what the president called the global war on terror. International obligations, and especially the Geneva Conventions, drew sneers in this White House. The vice president believed that since the Nixon years the executive branch had steadily ceded authority to Congress, the courts, and even international institutions, and he made it his mission to arrest that decline. (It was the principle at issue in the energy task force/duck-hunting case in the Supreme Court.) As important as abortion was to the outside conservative groups, the issue of executive power—and stopping the meddling of liberal judges—was to Cheney. With Hamdan, Roberts had proved himself worthy. Cheney and Miers were on board.

  The next Monday, Roberts was told to return from London once more; Bush’s decision was near. The following morning, Tuesday, July 19, rumors swept Washington that the choice would be Clement, who had met with Bush over lunch on Saturday. (Sekulow, who fancied himself a White House insider but was merely a useful instrument to those in power, spent the morning saying Clement was a done deal.) In fact, at 12:35, Bush left a meeting with the Australian prime minister to call Roberts and offer him the job. Roberts’s wife and two children joined him and the president at the White House for dinner at 7:00, and at 9:00, in the East Room, on live television, Bush introduced Roberts to the nation. The contrast with the last announcement of a Supreme Court nominee was stark. In 1994, during the news graveyard of Friday afternoon, Clinton had made a rushed and grumpy disclosure of Breyer’s name, without even having the nominee by his side. Bush was showcasing Roberts in prime time.