The Nine

by Jeffrey Toobin

  For the most part, Democrats simply chortled, relishing the intramural quarrel on the other side of the aisle. They made sure that reporters saw the fawning notes that Miers had written to Bush during his years as governor. “Hopefully, Jenna and Barbara recognize that their parents are ‘cool’—as do the rest of us,” she wrote in one. “Keep up the great work. Texas is blessed!” And “You are the best governor ever—deserving of great respect!” And “You and Laura are the greatest!”

  Democratic senators raised questions about cronyism, which were especially resonant in the aftermath of Katrina. But notably, not a single Democratic senator announced his or her intention to vote against Miers. As the right-wing attacks on her grew more frenzied, some Democrats began to think that perhaps Miers really was a secret moderate and thus the best they could hope for as a Bush nominee.

  Specter set the start of Miers’s hearings for November 7, and as the date grew closer the chairman of the Judiciary Committee made it clear that he was unimpressed with Miers. Unlike most of his fellow Republicans, the dyspeptic Specter cared more about her qualifications than about her ideology. He noted publicly that she would need a “crash course” on constitutional law, which was not something that anyone could have said about John Roberts. On October 19, Specter and Patrick Leahy, the ranking Democrat on the committee, sent Miers a nasty letter complaining about several of her answers on her questionnaire. They wanted more detail on “the nature and objectives” of all organizations to which she had belonged and “any and all communications, including those about which there have been recent press reports, in which friends and supporters of yours, among others, were said to have been asked by the White House to assure certain individuals of your views.” In other words, they wanted to know about Hecht’s promises that she would vote to overrule Roe. The senators gave Miers until October 26 to complete her answers.

  Through the second and into the third week of October, Miers continued to meet privately with senators and to prepare for her public testimony. Neither the meetings nor the rehearsals went especially well. Miers lacked Roberts’s charm as well as his deep knowledge of constitutional law—which allowed him to summarize the state of the law at length without letting on much about his own views—and she did little in person to help her cause.

  Still, despite the predictions of her increasingly desperate enemies, Miers likely would have handled the hearings with relative ease. Congressional hearings almost always reflect better on the witness than on the senators, who generally come across (with some reason) as pompous and uninformed. Hostile cross-examination from conservatives would almost certainly have evoked sympathy for the nominee. Miers’s personal story of triumph over adversity, like Thomas’s fourteen years earlier, would have counted for a great deal with the public. The forty-four Democrats in the Senate, figuring that Miers was the best they could do (and already sixty years old), would probably have voted overwhelmingly to confirm. Even perfunctory lobbying by Bush would have produced a substantial number of Republican votes. By mid-October, Miers’s confirmation looked likely—if she could get to a vote.

  That was why her enemies in the conservative movement were determined to prevent that vote from ever taking place. On October 21, the syndicated columnist Charles Krauthammer, a conservative opposed to Miers, wrote, “We need an exit strategy from this debacle. I have it.” Senators should ask for “privileged documents from Miers’s White House tenure,” and the president should refuse to turn them over. The request could create a conflict “of simple constitutional prerogatives: The Senate cannot confirm her unless it has this information. And the White House cannot allow release of this information lest it jeopardize executive privilege. Hence the perfectly honorable way to solve the conundrum: Miers withdraws out of respect for both the Senate and the executive’s prerogatives.”

  The idea was breathtakingly cynical—a more or less open fraud—but it served the conservatives’ purpose. Republicans had been complaining for years that Democratic filibusters were denying Bush’s judicial nominees “up-or-down votes” the president even used that phrase in his State of the Union address in 2005. Yet the exact same people who were complaining about the denial of votes to Bush’s other judicial nominees were mobilizing to deny just such a vote to the White House counsel, who helped select most of the other would-be judges. But to the conservatives, nothing mattered—not consistency, not fairness, not the fate of an otherwise allied figure—except getting guaranteed control of the Supreme Court. The “Krauthammer solution,” as it became known, was put into effect.

  One person who could have stopped the railroading of the nominee was Miers herself. In 1987, Robert Bork refused to withdraw even when it became clear that he would lose in the Senate, and the recorded vote went forward, a 58–42 defeat. In this case, it was by no means clear that Miers would lose. But at a fundamental level, Miers always acted more as Bush’s attorney than as an independent actor. A lawyer always puts a client’s interests ahead of his or her own, and Bush’s priority was pleasing his most conservative supporters, particularly when it came to the Supreme Court. Miers would not force Bush to disappoint his base, even at great personal cost. She would withdraw as a nominee.

  At 8:30 p.m. on Wednesday, October 26, twenty-three days after Miers was nominated, she called Bush to tell him that she would drop out. For the moment, the decision remained their secret, and later that evening the White House even submitted the answers to the senators’ follow-up questions. But the next morning, they executed the Krauthammer solution. Miers wrote a letter to Bush saying that senators were planning on asking about her service in the White House. “I have steadfastly maintained that the independence of the Executive Branch be preserved…. Protection of the prerogatives of the Executive Branch and continued pursuit of my confirmation are in tension. I have decided that seeking my confirmation should yield.” In a statement issued the same day, Bush “reluctantly accepted” Miers’s withdrawal.

  The next day, Friday, October 28, Lewis “Scooter” Libby, the vice president’s chief of staff, was indicted in the CIA leak investigation for perjury and obstruction of justice, ending perhaps the worst week of the Bush presidency. The Miers debacle and the Libby charges took place while the Gulf Coast remained in extremis and the Iraq disaster continued. Facing similar crises, other presidents had found refuge in moderation, in bipartisanship, in gestures of conciliation to political adversaries.

  But George W. Bush did not conduct that kind of presidency. Over the weekend, Harriet Miers, ever loyal even in the face of public humiliation, accompanied the president to Camp David to help choose a replacement for herself. Their goal remained unchanged—to select the most conservative possible Supreme Court justice, one who would be welcomed by James Dobson, the Arlington Group, Ed Meese, Jay Sekulow, Manny Miranda, and the rest of the president’s base. By 8:01 on Monday morning, they had their man.

  23

  DINNER AT THE JUST DESSERTS CAFÉ

  The weekend at Camp David was mainly for relaxation, at least for the president. Bush had already made up his mind. Notwithstanding the distraction of the Libby indictment, both Bush and Andrew Card found time to call Judge Samuel A. Alito Jr. in his chambers in Newark. Again the conversations were cursory, but they reflected Bush’s more or less instantaneous decision. He had liked Alito more than Luttig (the only other candidate considered), so Alito it would be. As for Laura Bush’s preference for a woman, the Miers fiasco convinced the president that choosing a reliable conservative mattered more.

  In a curious way, the nomination of Alito amounted to Miers’s revenge. Miers had been the lone skeptic about Roberts’s conservative credentials, only to have her own nomination implode because she could not convince the true believers of her own. So the seat went to Miers’s favorite candidate from the beginning, the one who everyone agreed represented a guaranteed conservative voice. For Alito, Karl Rove would not need to organize plaintive conference calls to his friends in the conservative movement;
they were already on board. As Manny Miranda wrote in his first blast e-mail on Monday morning, October 31, just minutes after Bush and Alito stood together in the White House, “As with Chief Judge John Roberts, the President has hit a grand slam with this nomination.”

  That was not Sandra O’Connor’s view. Shortly after she announced her departure from the Court, the president held a private dinner for her at the White House, where O’Connor was invited to prepare the guest list of about fifty people. After Bush’s toast, O’Connor offered a perfunctory thank-you. And as she was leaving, she sighed to the wife of a current justice, “Well, that wasn’t so bad.”

  O’Connor had learned not to be shocked by anything Bush did, but the Alito nomination felt like a direct affront. O’Connor had been vaguely insulted by the Miers selection, as well. Regarding Miers, O’Connor asked acidly why Bush couldn’t find anyone with more stature than his own lawyer. In fairness, Miers probably had about as much stature as O’Connor herself did in 1981 as an obscure judge on a midlevel appeals court in Arizona. But by 2005, O’Connor had long since become accustomed to her status as the most powerful woman, and one of the most admired, in America.

  Alito was a different story altogether. To a great extent, the judicial careers of Alito and O’Connor had been defined by the same case—where they had been on opposite sides.

  Like John Roberts, Alito had been nominated for a federal appeals court judgeship during the first Bush administration. Unlike Roberts, Alito had been confirmed, taking his seat on the Third Circuit in 1990. The backgrounds of the two men were similar. Alito came from more modest circumstances—his father was a civil servant in New Jersey state government—but young Sam, like the future chief justice, had an Ivy League education, with Princeton followed by Yale Law. Then, like Roberts, Alito had been a star among the cadre of conservative young lawyers who accompanied Ronald Reagan to Washington. Alito spent four years in the solicitor general’s office, two more with the Office of Legal Counsel, and then, in 1987, became the U.S. attorney in his home state of New Jersey. Alito had just turned forty in 1990 when he received his lifetime appointment to the federal bench.

  A year later, Alito had a chance to help his fellow judicial conservatives usher Roe v. Wade to its demise. The new judge participated in the epochal Casey lawsuit as part of the three-judge panel that reviewed the law. The Third Circuit panel upheld the law’s restrictions on abortion, such as its new rules on parental consent and waiting periods, almost in their entirety, but two of the three judges thought one provision about spousal notification went too far. Noting that “the number of different situations in which women may reasonably fear dire consequences from notifying their husbands is potentially limitless,” the majority ruled that part of the law violated women’s rights.

  Alito disagreed. He wrote his own opinion saying that he would have approved the Pennsylvania law in full and thus offered states a road map to restricting abortions as much as possible without outlawing the practice altogether. Since Pennsylvania wanted to limit the number of abortions, Alito said the requirement that wives notify their husbands of their plans was a reasonable means to that objective. Alito wrote in the same bland way that he spoke, and he observed, “The Pennsylvania legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands’ knowledge because of perceived problems—such as economic constraints, future plans, or the husbands’ previously expressed opposition—that may be obviated by discussion prior to the abortion.”

  The following year, the troika of O’Connor, Kennedy, and Souter saved Roe in their joint opinion in this case. (In the small world of conservative legal politics, John Roberts, then the deputy solicitor general, signed a brief at the time, which urged the justices to overrule Roe once and for all.) In drafting the portion of the Casey opinion striking down spousal notification, O’Connor had excoriated Alito’s logic, approach, and conclusions. Famously, O’Connor had called Alito’s view “repugnant to our present understanding of marriage and of the nature of the rights secured by the Constitution. Women do not lose their constitutionally protected liberty when they marry.”

  Now that very judge was getting a promotion to O’Connor’s own seat—and largely because Alito had proved his conservative bona fides in that very case. As one White House lawyer said of the new nominee, “He was on the bench for fifteen years, and he never got a case wrong.”

  O’Connor had announced her resignation in July of 2005 with every expectation that her replacement would be on the bench when the Court returned on the first Monday in October. Yet by Halloween, Bush was only then nominating another purported successor, with hearings and votes to follow over the next several months. O’Connor had genuinely hoped to be gone from the Court, but her protracted leave-taking did yield one side benefit—the chance to serve with John Roberts.

  O’Connor loved Roberts. More than most of the justices, O’Connor cared about how the public regarded the Supreme Court, and she thought that Roberts’s good looks and charisma projected exactly the right image. Once, during one of the first arguments before the Roberts Court, a lightbulb exploded on the ceiling, prompting the court police to reach for their sidearms. “It’s a trick they play on new chief justices all the time,” Roberts quipped, calming the courtroom. O’Connor told that story for weeks, as an example of Roberts’s charm. She even wrote a fawning, faintly embarrassing story about Roberts for Time magazine. (“The stars must have been aligned that January morning in 1955 when John G. Roberts Jr. was born in Buffalo, N.Y., because almost everything thereafter led him straight to the Supreme Court of the U.S.”) But O’Connor was hardly, as some thought, a starstruck schoolgirl. At a meeting to plan a conference she was hosting, someone wondered if the chief justice might be asked to attend. With icy confidence, O’Connor said, “I’ll take care of John Roberts.”

  For all of O’Connor’s fondness for Roberts, his appointment did not restrain the move to the left that characterized her jurisprudence and thus the Court’s. Indeed, as Rehnquist and O’Connor prepared to leave, there was a quality of a Prague Spring in the Court’s decisions—a last gasp of liberalism before a likely surge to the right. At the end of his tenure, Rehnquist was never more beloved, but also never more irrelevant.

  Take, for example, the chief’s vaunted federalism revolution. After the justices struck down the federal law prohibiting the possession of guns near schools in Lopez, Rehnquist had apparently revived the Commerce Clause as a meaningful check on Congress’s authority to pass laws. The decision raised the possibility that the Court would really stop Congress from regulating local activity, something legislators had been doing without interference since the New Deal. In 2005, however, the justices took up a challenge to a California law that allowed state residents, with a doctor’s prescription, to cultivate and use marijuana. A woman named Angel McClary Raich challenged the federal law prohibiting possession of marijuana, arguing that Congress, under the Commerce Clause, could not prohibit the purely private, noncommercial transactions covered by the law.

  In Gonzales v. Raich, six justices, including Kennedy and Scalia, said that Congress could indeed prohibit private, doctor-authorized pot farming. Stevens, writing almost as if the Court had never issued the Lopez opinion, gave nearly unlimited scope to congressional power under the Commerce Clause. Relying on the same New Deal cases that Rehnquist had scorned in Lopez, Stevens wrote that Congress may regulate “purely intrastate activity that is not itself ‘commercial’ ” if to do so is necessary to regulate interstate commodity markets. The federal government can regulate the activity of one individual if, when aggregated together with those of all similarly situated people, that person’s activity will have a “substantial effect” on interstate commerce. “That the regulation ensnares some purely intrastate activity”—such as the personal possession of marijuana for medical use—“is of no moment,” Stevens explained.

  Because nearly every kind of private e
conomic activity, no matter how minor, could impact interstate commerce if aggregated nation-wide, Stevens’s decision meant that Congress could regulate virtually everything. The pre-1995 status quo had returned. Again, Stevens’s patience during his long tenure had paid off with a thoroughgoing vindication of his views. Rehnquist could only join a forlorn protest in dissent.

  It wasn’t just the conservative federalism revolution that sputtered in 2005; that year Kennedy invoked foreign law to strike down the death penalty for juvenile offenders. And these decisions followed the Court’s rejection of the administration’s position on Guantánamo Bay and O’Connor’s endorsement of affirmative action at the University of Michigan Law School. But it was perhaps the most controversial pair of cases from 2005 that underlined which remaining justice had the most to lose from O’Connor’s departure from the Court.

  On the morning that O’Connor resigned, Stephen Breyer heard the news on National Public Radio. The two had become so close that it hurt Breyer’s feelings a little that she gave him no advance notice. Typically, O’Connor just attributed her secrecy to common sense; she didn’t want to place any of her colleagues in an awkward position if they were asked about her plans. But her alliance with Breyer had only grown stronger over time. In some cases it was hard to tell which one of them represented the Court’s swing vote.

  Few justices took to the work of the Supreme Court with greater ease or enthusiasm than Breyer. His intelligence had never been in doubt, but when Clinton appointed him in 1994, Breyer had little experience in the grist of Supreme Court work—constitutional law. He was a problem solver, a technocrat, an antitrust and administrative law expert, the author of the federal sentencing guidelines. He was not someone who had given much thought to the majestic generalities of the Constitution. But in 2005, he did something that no justice had attempted in several generations—to write his own manifesto on the meaning of the Constitution. Characteristically, Breyer’s book, Active Liberty, was hardly an airy philosophical treatise but a practical book by a practical man. “Our constitutional history,” he wrote, “has been a quest for workable government, workable democratic government, workable democratic government protective of individual personal liberty.” No word better suited Breyer’s approach than workable.