The Oath

by Jeffrey Toobin

  And as everyone knew, a Supreme Court vacancy was imminent.

  No justice on the Court spent more time on the job, or enjoyed it less, than David Souter. Six days a week, sometimes seven, Souter would drive his battered car into the basement parking lot and trudge up to his chambers on the first floor. On weekends, he would occasionally forswear his three-piece suit. Souter lived in a modest apartment in an unlovely neighborhood. He didn’t go to parties or even out to dinner. His world was mostly circumscribed by the jogging paths near his home and the corridors of the Supreme Court building. (In 2002, Souter did happen to attend a party to celebrate Strom Thurmond’s one hundredth birthday. Afterwards, he told his law clerks, “If I am still on the Court at eighty-five, I want one of you to shoot me.”) Even people who didn’t know much about the Court knew that David Souter hated Washington.

  There was truth in this, but it was far from the whole story. In some ways, Souter didn’t mind having his unhappiness on the Court portrayed as a simple eccentricity, like his predilection for lunching on a cup of yogurt and an apple (including the core). This is a guy who doesn’t know how to use a computer or a cell phone—and, crazily enough, he doesn’t like Washington either! That kind of explanation obscured the more painful truth. Ironically, Souter liked Washington somewhat more in his later years on the Court, in part because he had his first serious girlfriend in years. It was true that Souter wanted to return to New Hampshire, but the reasons were harsher, and uglier, than a simple longing for the White Mountains. He abhorred the views of Roberts and Alito. Souter didn’t like what the Republican Party—his party—was doing to the Court, or to the country.

  Souter identified with a tradition in American politics and law that had almost vanished from public life: the moderate Republican. As Souter was moving up the ranks in New Hampshire, from attorney general to the state supreme court, his mentor was Warren Rudman. New England used to abound in moderates like Rudman—and Lowell Weicker in Connecticut, Robert Stafford and Jim Jeffords in Vermont, and John Chafee in Rhode Island. On the Supreme Court, moderate Republicans had played crucial roles for decades: John Marshall Harlan II in the fifties, Potter Stewart in the sixties, Lewis Powell in the seventies, and Sandra Day O’Connor in the eighties, nineties, and beyond. As a group, they prized stability and venerated precedent. So did Souter, who liked to quote something that Rehnquist (hardly a moderate himself) used to say: “The law of the United States is like an ocean liner. You can’t turn it on a dime.” Scalia and Thomas, joined now by Roberts and Alito, thought otherwise and were trying to make that sharp turn in case after case. Moderate Republican ideas, like moderate Republicans, were disappearing from the Court as they were disappearing from the country.

  For Souter, all his worries, all his distaste for the modern Court, had come together in a single case: Bush v. Gore. In the years since the decision, in 2000, there was a kind of informal agreement among the justices not to talk about it. They were used to disagreeing with one another, of course; that was the nature of the work. But the wounds of Bush v. Gore were so deep, the anger so profound on both sides, that it was thought best to avoid the subject altogether. Momentous Supreme Court cases tend to move quickly into the slipstream of the Court’s history. In the first ten years after Brown v. Board of Education, the justices cited the case more than twenty-five times. In the ten years after Roe v. Wade, there were more than sixty-five references to that landmark ruling. By the time Obama became president, it had been nearly a decade since the Court, by a vote of 5–4, terminated the election of 2000 and delivered the presidency to George W. Bush. Over that time, the justices provided a verdict of sorts on Bush v. Gore by the number of times they cited it: zero.

  Bush v. Gore broke David Souter’s heart. The day the music died, he called it. It was so political, so transparently political, that it scarred Souter’s belief in the Supreme Court as an institution. Scalia, in his public appearances, would often be asked a hostile question about Bush v. Gore, and he always said the same thing: “Oh, get over it!” Souter never did. After the election of 2004, Souter almost quit the Court in disgust. After all, he thought, George W. Bush told the people what he wanted to do with the Supreme Court, and he won the election, so perhaps he should just let Bush have his chance. Souter thought of Oliver Wendell Holmes’s mordant observation about the role of a judge in a democracy: “I always say, as you know, that if my fellow citizens want to go to Hell I will help them.” A close friend in New Hampshire talked Souter out of quitting, but he was certainly ready to go by the time Obama won the election. Souter would not even turn seventy years old until later in 2009—still middle-aged for a Supreme Court justice—but he had had enough. Roberts and Alito were obviously intelligent and honorable men, Souter thought, but he didn’t recognize their approach to the law. He thought it was time to let someone else try to figure it out.

  Through former Souter clerks on his staff, Greg Craig learned that Souter planned to leave at the end of the 2008–09 term. Souter asked his clerks to find out from Craig what the best time for his announcement might be. Craig sent back word that late in the spring would be better than earlier; that way, Obama could build up some momentum with other judicial nominations before moving on to the Supreme Court. In any event, the formal announcement leaked out rather awkwardly. On the evening of April 30, Nina Totenberg of NPR and Pete Williams of NBC announced that Souter would be retiring at the end of the term. The following day, other news outlets confirmed the story, but there was still no official word from Souter or the Supreme Court. Craig decided simply to call Souter and ask him what was going on. Souter confirmed that he was retiring and would write his formal letter of resignation the next day.

  Supreme Court resignation letters are an art form. The justices know that the letter will be widely distributed, so they make an effort to craft a meaningful valedictory. “It has been a great privilege, indeed, to have served as a member of the Court for 24 terms,” O’Connor wrote in 2005. “I will leave it with enormous respect for the integrity of the Court and its role under our constitutional structure.” (This sentence reflected what O’Connor intended: her pride that the Supreme Court had reined in George W. Bush’s excesses in the war on terror.)

  In contrast to O’Connor but in keeping with his singular style, David Souter wrote his letter with all the poetry of a phone bill:

  Dear Mr. President,

  When the Supreme Court rises for the summer recess this year, I intend to retire from regular active service as a Justice, under the provisions of 28 US.C. § 371(b)(1), having attained the age and met the service requirements of subsection (c) of that section. I mean to continue to render substantial judicial service as an Associate Justice.

  Yours respectfully,

  David Souter

  Souter’s letter meant that he had served long enough as a federal judge to retire at full pay. (Years earlier, Souter had made a series of canny investments in New England bank stocks that multiplied in value and left him, with Ginsburg, as the wealthiest justice, with a net worth between $6 million and $27 million. But Souter remained at heart a frugal New Englander, and if he was entitled to retirement pay, he was going to take it.) Souter’s letter meant further that he wanted to continue sitting as a circuit court judge, as was his right, following his resignation as a justice.

  More importantly, the letter meant that a Democratic president would have a chance to name a justice to the Supreme Court for the first time in fifteen years.

  During those fifteen years, conservative ideas about the judiciary and the Constitution—especially originalism—enjoyed a great deal of prominence. To many in the liberal camp, the nomination of a new justice, and the confirmation hearings to follow, offered an excellent opportunity to put forth an alternative, progressive legal vision. To them, the point was not simply to confirm a Democrat but also to win the war over the interpretation of the Constitution.

  Neither Obama nor the people around him wanted any part of such an undertakin
g. In the first place, that wasn’t the president’s style. He wasn’t looking to start fights that he didn’t need to have. Moreover, Obama himself had basically middle-of-the-road ideas about the Constitution, and he wanted a nominee with similar views. Finally, given the crowded legislative calendar, Obama and his team wanted a no-drama confirmation. His nominee should be confirmed with as little disruption as possible.

  But who should it be? Back in Chicago, the week after the election, Obama had given his own list of four names to Craig and Axelrod: Sonia Sotomayor, Elena Kagan, Diane Wood, and Cass Sunstein. A young staffer on the transition, Danielle Gray, now a member of Craig’s staff, had drawn up the first memos about the candidates. Now, about six months later, the list had changed slightly.

  Cass Sunstein had been a colleague of Obama’s at the University of Chicago Law School, where he was perhaps the most accomplished, and certainly the most prolific, legal scholar of their generation. Sunstein moved to Harvard Law School and worked on Obama’s campaign, where he met and later married Samantha Power, a human rights scholar and activist who had also become an adviser to Obama. Sunstein’s interests were a lot like Breyer’s—administrative law, government efficiency in all its forms. As a result, Obama had appointed him to a little-known but powerful job running the Office of Information and Regulatory Affairs at the Office of Management and Budget. Republicans knew Sunstein was a possible Supreme Court nominee, so they put him through an arduous confirmation process; he still had not been confirmed by the full Senate for his OMB job when Souter stepped down. Sunstein’s eclectic views had the ability to offend both the left and the right, and he liked being where he was. Sunstein was removed from consideration.

  Janet Napolitano was added. Like Bill Clinton before him, Obama had mused about the need for nonjudges on the Supreme Court. In this regard, the transformation on the Court had been enormous. Only one of the justices who decided Brown in 1954 had ever been a full-time judge. (Sherman Minton was a former senator who had served on the Seventh Circuit; Hugo Black had been a part-time judge on a police court in Alabama.) When Alito replaced O’Connor, for the first time in history all nine justices were former federal appeals court judges. The change owed much to the differences in the confirmation process over fifty years. When FDR appointed figures like Felix Frankfurter (law professor and activist who had spoken out in defense of Sacco and Vanzetti), William O. Douglas (head of the SEC), and Robert Jackson (attorney general), the Senate did little more than act as a rubber stamp. That was true, too, when Eisenhower nominated Earl Warren, then governor of California, to be chief justice. But as senators started to apply greater scrutiny, especially after Robert Bork’s defeat in 1987, presidents started opting for safe nominees whose prior records were largely devoid of political expression. That meant judges, not politicians.

  Napolitano had an extraordinary résumé—governor of Arizona, attorney general of the state, United States attorney as well. (Obama’s vetters took some sinister joy in noting, too, that one of Napolitano’s clients during her brief career in private practice had been Anita Hill. The possibilities for lively lunchtime conversations at the Court were duly noted.) But the prospect of scouring a lifetime of public appearances by a politician was daunting. Plus, Napolitano was off to a strong start as secretary of homeland security—a job that, if it could not win reelection for Obama, might lose it for him. Napolitano stayed on the list but, through no fault of her own, remained a problematic and unlikely choice.

  Kagan was only an outside shot for the Souter seat as well. She, too, had been a professor at Chicago, where she became acquainted with Obama, and had gone on to service in the Clinton White House and then a successful tenure as dean of Harvard Law School. But it had been only a month since she was confirmed as solicitor general, and she had not yet argued a case for the government in the Supreme Court. Indeed, Kagan had never argued a case in any court throughout her entire career. She might be a strong candidate someday—but for now she came off the list.

  The field—the real field—quickly came down to two: Diane Wood and Sonia Sotomayor.

  10

  WISE LATINA

  Sonia Sotomayor could have been genetically engineered to be a Democratic nominee to the United States Supreme Court. She had impeccable credentials: Princeton, then Yale Law School. She had ideal experience: big-city prosecutor, six years as a federal district judge (nominated by George H. W. Bush), and then a decade on the federal appeals court. She had, above all, a great story: raised amid poverty in the Bronx, with juvenile diabetes no less, she would make history as the first Hispanic on the Supreme Court. In light of all this, it looked like political malpractice for Obama not to nominate her.

  There was only one problem. Barack Obama really liked Diane Wood.

  When Wood was shuttling her three young children to music lessons in the late nineties, she already had a very busy life. She was a judge on the Seventh Circuit, a Clinton nominee confirmed in 1995, and she taught part-time at the University of Chicago Law School. Still, she sprang a question on her kids’ violin teacher: “Do you know anyone who could teach me the oboe?” Wood spent the next decade in intensive study of that difficult woodwind. Today she sits in with local orchestras.

  There was nothing conventional about Diane Wood. Even in the rarefied realm of law professors and federal judges, she had a rich, full, complicated life. She was born in New Jersey but came of age as a teenager in Texas, and she went to the University of Texas for college and law school. (This alone was an advantage on a Supreme Court dominated by Harvard and Yale graduates. Wood was also a Protestant; at that point, Stevens was the only Protestant remaining on the Court.) In Wood’s day, there were only a handful of women at the law school in Austin, but Wood flourished. She clerked on the Fifth Circuit for Irving Goldberg—a legendary Texas liberal—and then for Harry Blackmun on the Supreme Court. She speaks French, Russian, and German.

  After clerking, Wood went to work in Jimmy Carter’s State Department, where she specialized in international trade and antitrust law. She taught at Georgetown and then Chicago, until Clinton summoned her back to Washington to work in the antitrust division of the Justice Department. He put her on the Seventh Circuit in 1995. Along the way, Woods married three times—“my many husbands,” she referred to them ruefully. After a brief marriage during law school, she was with her second husband for twenty years. Dennis Hutchinson was a fellow professor at Chicago and one of Obama’s few good friends on the faculty. In 2006, Wood wed Robert Sufit, a professor of neurology at Northwestern.

  On the Seventh Circuit, Wood achieved a rare accomplishment. She was both an unapologetic liberal and a valued, even beloved, colleague to the outspoken conservatives on the Court, Richard Posner and Frank Easterbrook. In her opinions and copious scholarly work, she mounted a vigorous defense of the living Constitution. In an era when originalism was ascendant and many liberals (especially those with ambitions of serving on the Supreme Court) found it convenient to stay away from the debate, Wood took on the subject with enthusiasm. As she stated in the James Madison Lecture at New York University in 2004, the language of the Constitution “may legitimately be interpreted broadly, in a manner informed by evolving notions of a decent society.” She went on:

  First and most important is the idea that we should take seriously the fact that the text of the Constitution tends to reflect broad principles, not specific prescriptions. Neither James Madison, for whom this lecture is named, nor any of the other Framers of the Constitution, were oblivious, careless, or otherwise unaware of the words they chose for the document and its Bill of Rights. The papers they left behind leave no doubt that they hoped to be writing for the ages. There is no more reason to think that they expected the world to remain static than there is to think that any of us holds a crystal ball. The only way to create a foundational document that could stand the test of time was to build in enough flexibility that later generations would be able to adapt it to their own needs and uses.

>   This was a direct challenge to the originalist notion that Madison’s words should be interpreted only as he and his peers understood them. Wood applied this mode of analysis consistently—including on the question of abortion.

  It was Wood’s misfortune to have several abortion cases before her during her years on the Seventh Circuit. She voted to strike down so-called partial-birth abortion laws in Illinois and Wisconsin and rejected an informed consent law in Indiana. In all of these cases, her colleagues voted to uphold the laws. Worse yet for her chances was the case of National Organization for Women v. Scheidler, in 2001.

  The facts underlying that decision were chilling. During the 1980s, anti-abortion groups affiliated with the Pro-Life Action Network engaged in repeated acts of violence against women’s health clinics around the country. NOW used the federal racketeering law known as RICO to sue the group for damages and for an injunction to stop further attacks, and a jury found that the Pro-Life Action Network orchestrated 121 crimes involving acts or threats of violence. As NOW summarized some of the evidence, protesters at a clinic in Los Angeles beat a postoperative ovarian surgery patient over the head with their anti-abortion sign, knocking her unconscious and opening the sutures in her abdomen. In Atlanta, they seized a clinic administrator by the throat, choking and bruising her. They trashed a clinic in Pensacola and assaulted a staff member. The trial revealed a nationwide wave of terror. Wood’s opinion upheld the jury verdict, the damage award, and the injunction against the group.

  The Supreme Court reversed Wood’s holding by a vote of 8–1. (Only Stevens dissented.) The reason was narrow. Indeed, the Scheidler case demonstrated how cases involving terrible injustices can turn into bloodless disputes about legal technicalities in the Supreme Court. The justices held that the protesters did not “obtain” any of the clinics’ equipment, so that meant their activity did not fit the definition of extortion under the racketeering law. The case went back to Wood and the Seventh Circuit, which again ruled for NOW, and for a second time in the same case, the justices overturned Wood’s ruling, this time unanimously. (Alito did not participate.) It was true that these cases, as they arrived at the Supreme Court, concerned fairly arcane matters of federal statutory interpretation, not abortion law per se. But it was also true that Supreme Court confirmation fights did not concern such subtleties. In crude terms, the Supreme Court had twice reversed Wood’s rulings on abortion—and even Ruth Bader Ginsburg did not support her position.