The Confirmation

by Ralph Reed

  “Not sure of the exact time, but this morning,” replied the DOJ official.

  “What did Birch’s say?”

  “He asked for twenty-four hours to think about it.”

  Too soon for Myers’s next column; he would have to break this story on his Web site and on TV. His mind raced. What’s the source’s motive? he wondered. Is he trying to torpedo Birch or build momentum?

  “It’s an odd choice, isn’t it? This is going beyond the short list, at least the ones I’m aware of,” said Myers, prying. Myers was a master at bonding with sources by talking shop and whispering gossipy asides.

  “Long’s freelancing. Birch hasn’t even been vetted.”

  “What!? Boy, Long is really pulling a rabbit out of the hat, isn’t he?”

  “I’m told he wants someone with life experience in the ‘real world,’ whatever that means,” said the source, his voice dripping with disgust.

  “And he removes a possible opponent in four years,” drawled Myers.

  “Bingo.”

  “This is good,” said Myers, dropping into his best sleuth baritone. “Any ideas on who else I should talk to?” He needed a second source.

  “I don’t know,” said the source in a halting, nervous voice. “It’s a very tight hold.”

  “What’s Golden’s take?”

  “He’s outside the circle of love at this point,” the source answered. “He shot his wad trying to block Majette. He’s got no throw weight with Long anymore. A lot of people at DOJ are upset that Birch has not been vetted properly.”

  Myers wrapped his mind around the leaker’s motive. The bureaucracy had a way of biting back, he reflected. He thanked the source profusely and hung up. Telling his secretary to cancel his lunch with some muckety-muck lobbyist looking to plant a story for a client, he closed his office door and began to work the phones. In a city filled with Woodward and Bernstein wannabes, he was the last of the Big Feet, always chasing the Next Big Story, and this time he had a whopper.

  MIKE BIRCH SAT IN the study of his sprawling Mediterranean home on the water in Tampa. He wore khakis and a golf shirt, sockless feet slipped into Gucci loafers, hair sculpted with gel to reveal his stark widow’s peak, emerald eyes a study in concentration. A legal pad rested on his lap. He had written two columns of words beneath the headings, “pros” and “cons.”

  No one was more surprised than Birch by Long’s call. Neither he nor anyone in Washington figured him to be a factor in the Supreme Court sweepstakes. But like the selection of former Johnny Whitehead as vice president, Long relished surprises. He had already selected six Republicans to serve in his cabinet, including at Justice and Defense. Birch’s elevation to the Supreme Court would be the ultimate gesture that Long would govern as a centrist.

  Surprisingly Birch found himself intrigued. As he gazed out at the sun-speckled waves of the bay, deep in thought, he reflected that there was much to recommend returning to his roots in the law. When he raised objections on the phone call, Long had a quick answer for everything. Never been a judge before? Too many judges cloister themselves in their chambers and pursue the life of the mind, totally disconnected from the real world. Birch, Long implored, lived the law and saw its effects as prosecutor, state AG, and governor. A centrist who aroused the suspicions of the religious right? Good: it would help win confirmation in a Democratic-controlled Senate. Queasy about being the swing vote on Roe? Stop right there; there is no litmus test, period.

  Birch glanced down at the legal pad. He was a methodical decision maker who approached his moves with a gimlet-eyed understanding of risk and reward. Under “pros,” he wrote “opportunity to serve,” “impact the country’s direction,” “historic time,” “lifetime appointment,” “collegial working environment.” In the column headed “cons,” he wrote, “job of thought not action,” “controversial issues—abortion, marriage,” “confirmation battle,” and, most importantly, “presidential prospects end.”

  Long pressed skillfully, dangling the possibility of later elevating him to chief justice, but Birch knew he could not count on that. He was a man of action, a problem solver who as governor took on the sugar lobby and opened up Florida’s outer continental shelf to environmentally sensitive offshore oil drilling. The presidency beckoned: Long’s election was a fluke. Why settle for the Supreme Court if the White House was within his grasp? If he was the Republican presidential nominee, Birch was a dead cinch to carry Florida, and without the Sunshine State, Long’s reelection was impossible.

  On the other hand, Birch thought, if he went against Long, the contest would probably go to the House again. A presidential campaign was a crapshoot, a free-for-all with back-room deals, backstabbing, and logrolling. Nor was the GOP presidential nomination a cinch. In fact, it was decidedly uphill unless he tacked to the right, something he was not sure he was willing to do. Birch gave himself no more than a 40 percent chance of winning.

  He wanted to serve on the Supreme Court; he just wasn’t sure he wanted to go through the confirmation process. Presidents tended to appoint either stealth nominees (Souter, Bryer, Meiers) or ideologues (Scalia, Thomas, Alito). Birch was neither. A cottage industry of extremist groups would go after him, ideological bottom-feeders lurking in the dark eddies of American politics. To run that gauntlet could be more brutal and dehumanizing than even running for office, as Yolanda Majette had found out the hard way. The atmosphere in DC had become too poisonous, too partisan for rational debate.

  Birch walked to the window, staring silently at the water dancing in the sunlight. He was supposed to give the president an answer in eighteen hours, and he had no idea what he would do.

  “MARVIN MYERS ON LINE one,” said Jay’s assistant, sticking her head through the narrow doorway leading to his office.

  Jay assumed Myers was calling to welcome him back and reconnect. He snapped on his headset. “Marvin!” he boomed. “So what am I today, source or target?”

  “Always the former,” replied Marvin in a friendly purr. “I thought you said you would never take a government job. What was your line again? ‘The only thing I know how to run is my mouth’?”

  Jay guffawed. “Great memory, Marvin,” he said. He pretended otherwise, but Jay loved working the press. To him it was the ultimate Washington game: using someone else and being used at the same time, “Bob Long has been a client for twenty years. More than that, he and Claire are dear friends . . .” His voice trailed off. “What can I say? He love bombed me.” The statement stressed both his loyalty and indispensability and was therefore entirely self-serving and always worked like a charm.

  “Speaking of Claire, how is she?” asked Marvin, a hint of sadness in his voice.

  “She’s great,” said Jay. “Her focus is on getting well. The president talks to her every day. They’ve never been closer.” As always, Jay was disciplined and on-message. The tabloids were having a field day with Claire’s visit to rehab, but the White House stuck to its script.

  “Hey, I heard the strangest thing today,” said Myers, shifting topics. “If it hadn’t come from a good source, I would have ignored it.”

  “What’s that?”

  “I heard Long offered the Supreme Court nomination to Mike Birch of Florida.”

  Jay nearly fell out of his chair. Myers was maddeningly thorough, with sources burrowed all over town. “Not to my knowledge,” he lied.

  “Really?”

  “No. I can’t imagine Birch walking away from being governor, can you?” He was playacting, pulling out all the stops. He hoped it was believable.

  “The president didn’t talk to Birch this morning?” Myers pressed.

  This source is going to die, thought Jay. The information was too specific. “Marvin, I don’t know. What I can tell you categorically, and this is on background so deep that I’m wearing scuba gear, is no one has been formally offered the seat.”

  “Mmmmm,” said Myers, absorbing the information. “You didn’t deny the president spoke to Birch.”
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  “I said I didn’t know,” said Jay firmly, his anger growing. “Even if he did, I wouldn’t tell you.” Jay paused. “Between us, Birch is a reach.”

  “Why?” asked Myers. “It’s a two-fer, isn’t it? You eliminate a formidable opponent and add gravitas to the Supreme Court.”

  “It’s fantasy football,” said Jay dismissively. “It’s Bret Favre in a Vikings uniform.”

  “It would be a heckuva pick, though, wouldn’t it?” asked Myers.

  “Almost as inspired as Johnny Whitehead for vice president,” Jay replied, laughing. He pushed hard for Whitehead, which allowed Long to pick up Kentucky and helped him carry West Virginia and southern Ohio.

  “Keep me posted,” said Myers. “My source is good and your denial is nondenying.”

  “It’s a highly fluid process, Marvin. Lots of moving parts.” He hung up, picked up the receiver and immediately dialed Phil Battaglia.

  “I just hung up with Marvin Myers,” reported Jay. “He knows all about Birch!”

  “I know. He left me a message, which I have not returned.”

  “Where is it coming from . . . DOJ?”

  “I doubt it,” said Battaglia. “Birch is probably talking to his advisors. He’s not going to resign as governor without talking to them. My guess is one of them is leaking.”

  “We need Birch to say yes,” said Jay. “Otherwise, the president is left at the altar.”

  “The president promised to consider him for chief justice if there’s a vacancy,” replied Battaglia. “I don’t know what else we can offer him.”

  Jay hung up the phone. He longed for the campaign, when only a few key people knew what was really going on. Now there were thousands, inside and outside the White House, in the alphabet soup of the bureaucracy—DOJ, CIA, FBI, DOD. And they talked.

  STEPHEN FOX LOGGED ON to the New York Times Web site from his Powerbook as he did every day after his morning swim. He sat in a deck chair on the teak sundeck of his $16 million, 140-foot yacht, aptly named Felicity’s Pleasure, floating in the gentle waters of the British Virgin Islands. He could make out the hilly outline of Virgin Gorda in the near distance and Richard Branson’s private island (yours for only $25,000 a day) just beyond it. His eyes scanned the front page. “Birch reportedly offered seat on Supreme Court,” read the headline, with its tantalizing subhead: “Long reaches for possible GOP presidential rival.”

  Fox was stunned. His consultants (he had an army of them) never mentioned Birch. Why am I paying these guys so much money to play golf and go to lunch? Fox’s mood darkened. He might as well have flushed the $10 million he spent that year in lobbying and legal fees down the toilet. Needing to vent, he impulsively picked up his iPhone and dialed the DC offices of Hoterman and Schiff. G. G. Hoterman answered in his distinct gravelly baritone.

  “G. G., why didn’t we see Birch coming?” barked Fox.

  “If it’s any consolation, Stephen, no one did,” said G. G., cocky as always. “This is like McCain picking Palin, or Long picking Whitehead. It’s totally out of left field.”

  The comment partially pacified Stephen. “But I thought we hired lobbyists close to Keith Golden, plus we had Edgewater. Do they keep their own team in the dark?”

  “Everyone’s in the dark,” said G.G. “Look, it was just as bad when he picked Majette, who was an affirmative action baby and ethically challenged lightweight. My sources tell me that DOJ is completely frozen out. Long has grabbed the joy stick and, he’s flying the freaking airplane! No one knows what he’s going to do.”

  “A guy like that is dangerous,” said Fox.

  “How do you think his wife ended up in rehab?” joked G. G.

  “So are we covered with Birch?”

  “As well as we could be,” reported Hoterman. “Wildfire gave $25 thousand to the Florida GOP during his reelection and $50k for his inaugural. We hired a couple of his consultants to do business development. The good news is as state AG, he didn’t join the antitrust suit.”

  “That’s helpful,” said Fox. “Is there a law firm close to him?”

  “Finding that out as we speak.”

  “If there is, hire them.”

  “I’m all over it.”

  Fox hung up without so much as a good-bye. Orlando, his long-serving houseman, brought him an Arnold Palmer in a tall glass with a wedge of lemon and sprig of mint leaves floating on top. His eyes narrowed behind his silver Chrome Heart glasses. As the future of Wildfire hung in the balance, Bob Long was choosing a Supreme Court justice like he was firing a rifle at a shooting gallery. He shook his head in disgust.

  Just then Felicity glided up the circular stairway wearing a fishnet bikini with a wraparound skirt, Chanel sunglasses and wedges. Her hair pulled up to the top of her head with a hair clasp revealed her long tanned neck, well-defined collar bone, and toned muscles.

  “Hi, baby,” Fox greeted her, flashing his pearly whites.

  Felicity walked around behind him and leaned forward, jutting out her rear and wrapping her arms around his neck, hands draping over his chest. She placed her chin on his shoulder and looked down at the Mac. She begun to massage his shoulders gently.

  “Turn it off, Stephen,” she said. “You agreed no work on this trip, remember?”

  “Can’t help it, honey. Long offered Mike Birch the Supreme Court seat, and we’re playing catch-up. All our expensive consultants got caught with their pants down.”

  Felicity slid into the deck chair next to him and crossed her long legs, bouncing one of her wedge sandals on the end of her toe. “Let’s sail over to Little Dix Bay for lunch.”

  “Sure, babe, whatever you want.”

  “Good answer,” said Felicity with a playful lilt. “I’ve trained you well.” She leaned over, placing a hand on his knee to balance herself, and kissed him multiple times, her lips brushing his lips, nose, chin, and cheeks. “I’ll get you to turn that computer off yet,” she giggled.

  TWENTY-SIX

  It was 11:00 a.m. when Mike Birch walked to a podium covered with microphones at the sleek and modern Tampa Bay Convention Center, an antiseptic building with stark lines and mammoth windows offering spectacular views of the bay. The operatic drama surrounding Long’s offer to Birch stretched to its third day, with the White House growing increasingly frustrated with Birch’s Hamlet-like decision-making process.

  The media had a field day. Marvin Myers kicked off the feeding frenzy with a column reporting that Long had practically begged Birch on bended knee to take the job. “Birch Ponders, Long Waits,” headlined Politico. “Will He . . . or Won’t He?” screamed Merrypranskster.com beneath a photo of the relaxed, unruffled governor reading a newspaper poolside. “Birch’s Choice: Supreme Court or the Presidency?” shouted the New York Post. No national politician had engaged in such riveting indecisiveness since Mario Cuomo flirted with running for president as a private jet waited on the tarmac to take him to New Hampshire.

  Into this storm stepped Birch, tanned, silver maned, deep-set eyes fixed in a dispassionate stare, a stoic mask plastered on his face like heavy makeup. Cool and controlled, he spoke without a note. “First let me say I am deeply grateful to President Long for the offer to serve my country as an associate justice of the U.S. Supreme Court. It is a rare, once-in-a-lifetime opportunity I have seriously considered in recent days,” he began, emerald eyes steady, chin raised. Cameras flashed, capturing Birch against a cloudless blue sky. “I spoke with the president a few minutes ago and informed him I believe I can be more effective in advancing the issues I care deeply about as governor.” There were audible gasps from the throng, which filled the ballroom to near capacity. Having twisted the knife, Birch moved to soften the blow. “The president told me he appreciated my willingness to forego a tremendous personal opportunity in order to serve the larger good.”

  His brief, no-frills statement finished, Birch agreed to take a few questions.

  “Governor, could you walk us through the process by which you reached your decisi
on? Was it the most difficult of your career?” asked the St. Petersburg Times, in full pander mode.

  “Tough decision, no question,” said Birch, verbs apparently unnecessary in describing the state of his psyche. “In the end it boiled down to where I felt I could make the biggest difference. Serving on the Supreme Court would be a great honor. But I’ve learned a lot about the challenges facing America after serving as governor of the third largest state in the country. If I were a Supreme Court justice, I would be limited in my ability to speak out on the issues facing the country.”

  The press smiled knowingly, scribbling furiously on steno pads. “Speak out” could only mean campaigning for the presidency. Birch seemed to be saying to Long, sotto voce, I don’t want to squander my talent on the Supreme Court. I want your job.

  “Did President Long promise to elevate you to chief justice if that opportunity presented itself?” asked the Associated Press.

  Birch scowled theatrically. “The only position the president offered was associate justice.” He paused. “Regardless, my answer would have been the same. My decision came down to where I thought I could be most effective.”

  “Now that you’ve ruled out sitting on the Supreme Court, is there a possibility you will run for president in the next election?” asked the Washington Post.

  “I thought that question might come up,” said Birch, barely repressing a smile. “It’s way too early to think about that. Any considerations of seeking higher office played no role whatsoever in my decision.”

  The press smiled again: he could lie with the best of them! As the news conference wound down, the chief political reporter for the Tampa Tribune turned to a colleague. “Book your flights to Iowa and New Hampshire,” he said in a half whisper.

  BACK AT THE WHITE House, disappointed but grimly determined staffers in the Office of Presidential Personnel gathered around the television, doing a slow burn as they watched Birch kick their boss in the teeth. Their mood ranged from maudlin funk to gallows humor. There was no denying Long was publicly spurned by a leading candidate for the Supreme Court on the heels of his first nominee going down in flames. The chattering class handicapped the White House the way the ESPN anchors on “SportsCenter” analyzed a hapless football team. People were down and the White House plagued by second-guessing.