The Nine

by Jeffrey Toobin

  O’Connor’s foes weren’t backing down either. On April 7, Tom DeLay told a conservative conference in Washington entitled “Confronting the Judicial War on Faith” that “judicial independence does not equal judicial supremacy.” Speakers at that conference advocated “mass impeachment,” stripping the courts of jurisdiction to hear certain cases, and using Congress’s budgetary authority to punish offending judges. O’Connor fired right back at him, noting in a speech to an appellate lawyers’ association that “this was after the Terri Schiavo case, when the federal courts applied Congress’s one-time-only statute as it was written, but, alas, perhaps not how the congressman wished it was written,” O’Connor said.

  “It gets worse,” O’Connor went on. “In all the federal courts, death threats have become increasingly common.” Taking aim at Senator Cornyn, she said, “It doesn’t help when a high-profile senator, after noting that decisions he sees as activist cause him ‘great distress,’ suggests there may be ‘a cause-and-effect connection’ between such activism and the ‘recent episodes of courthouse violence in this country.’ ”

  The threats were not an abstract issue for O’Connor. In this very month, April 2005, just weeks after the malicious comments in the chat room, each of the justices was sent homemade cookies containing lethal doses of rat poison. The packages were intercepted before they reached the justices’ chambers; the woman who sent them, Barbara Joan March, of Bridgeport, Connecticut, also sent poison to several executive branch officials. (The next year, March was sentenced to fifteen years in prison.) At the time of the Cornyn and DeLay remarks, the episode left O’Connor feeling that the judiciary was under siege.

  In her final year on the Court, O’Connor advocated vigorously for the system that made possible all that she had done. Only an independent Supreme Court kept the government tethered to the core values of the Constitution. To O’Connor, the fight for judicial independence had never been more important, because she and her cause now had powerful adversaries—the political party she had once loved and the president she had once installed in office.

  For all the challenges she faced, it was still a great time in O’Connor’s life. She was a healthy seventy-five-year-old woman working in a job that she adored, one that had given her the chance to be the most important woman in American history. She reviled the current administration, but she had the world’s best platform to speak out against its abuses. She was more influential than ever, the critical vote on issue after issue, and she reveled in that responsibility. In Breyer, O’Connor had found a true friend and ally—her first since Powell left the bench many years earlier.

  But as the months passed in 2005, O’Connor did not have the chance to savor her good fortune. After a period of some stability, her husband’s health was again declining. John did not take well to her move to the second-floor chambers. Worse, he began to exhibit one of the most heartbreaking symptoms of Alzheimer’s disease, a penchant to wander. If he was not watched at all times, John simply left her chambers. Several times Court personnel tracked him down just before he got outside, where he could have been lost, injured, or worse. Even with all the resources available to a Supreme Court justice, the situation was becoming unmanageable.

  John’s comments on election night in 2000 about Justice O’Connor’s wish to resign had leaked to the press soon after the decision in Bush v. Gore, so speculation about her retirement had been incessant. O’Connor enjoyed public attention and sought publicity, but only on her own terms. Aware that reporters would ask her friends and colleagues if they knew about her plans, she never discussed the subject with them. O’Connor said little even to her three sons about what she should do. But by the end of the Court’s term in June 2005, there really wasn’t much to debate. She had not outsourced her boys’ upbringing, she said, and she was not going to outsource John’s care either.

  A few days before the end of the term, O’Connor asked to see Rehnquist in his chambers. More than on any other subject, the justices respected each other’s privacy on the question of retirement, but the issue couldn’t wait anymore. So, more than fifty years after they met at Stanford, the two old friends sat opposite each other and talked about their future.

  “Bill, I think John needs me. I think I need to go, but I don’t want to leave the Court with two vacancies,” she said.

  The chief said he couldn’t know how his disease would progress, but he was stable at the moment and his doctors had hope. He had returned to the bench on March 21, 2005, after five months away, and he had presided for the last weeks of the term with his tracheotomy tube still in place. “I think I can make it another year,” Rehnquist said. “I’m not going to resign.” O’Connor was willing to stay one more year and in some ways wanted to remain on the Court. But the chief’s desire to hang on for another term meant that it would be two years until she could retire, and she didn’t think John could wait that long for her. Rehnquist had forced her hand and thus delivered O’Connor’s seat—the crucial one on the Court—to George W. Bush.

  The final day of the term was Monday, June 27, and the courtroom was packed in anticipation of news of a possible retirement—Rehnquist’s. But the chief merely closed the Court’s term with best wishes for a good summer, and the thought of a Supreme Court vacancy seemed to pass from the Washington agenda for another year.

  Three days later, however, around lunchtime on Thursday, Pamela Talkin, the marshal of the Court, called Harriet E. Miers, the White House counsel, to arrange for hand delivery of a letter the following morning. (Miers had recently been promoted from deputy chief of staff to succeed Alberto Gonzales as White House counsel.) Talkin did not say which justice would be sending it. The next morning, Friday, July 1, just before nine, Talkin called Miers and said the letter, which was from O’Connor, was on its way.

  The news of O’Connor’s resignation hit official Washington like thunder. The expected replacement of Rehnquist would have been momentous—there had, after all, been forty-three presidents but only sixteen chief justices. But a Bush appointee in that seat would not change the balance of power on the Court in any dramatic way. The loss of O’Connor, in contrast, would. The conservative counterrevolution, thwarted for so long, often by O’Connor herself, might finally have a chance to succeed.

  Few people paid attention to the text of the letter that had been delivered to the president, but O’Connor had crafted the message with care:

  Dear President Bush,

  This is to inform you of my decision to retire,…effective upon the nomination and confirmation of my successor. It has been a great privilege, indeed, to have served as a member of the court for 24 Terms. I will leave it with enormous respect for the integrity of the court and its role under our constitutional structure.

  Sincerely,

  Sandra Day O’Connor

  It was, in O’Connor’s polite way, a direct shot at Bush and a plea for the cause that obsessed her in her final days on the bench. She was determined to protect the Court’s “role under our constitutional structure” precisely against the incursions that she thought Bush and his allies were attempting to make.

  But few people noticed. O’Connor discovered quickly that retirement brought fulsome tributes but also immediate irrelevance. One moment she was the swing vote on the Supreme Court and the next, it seemed, she was a display piece in a museum. She had lost her job, and the political party that was her home had lost her. Worst of all, she was losing her husband. In those first days after her announcement, she didn’t answer the phone too often. She sat in her office and cried.

  PART

  FOUR

  20

  “‘G’ IS FOR GOD”

  The planning for this moment—the opportunity for George W. Bush to nominate a justice to the Supreme Court—had begun shortly after Election Day in 2000. At the time, with Florida still undecided, it was not even clear that Bush would become president, but his team wanted to be ready with a nominee as soon as there was a vacancy. The transformatio
n of the Court would be a central priority of the new administration, if Bush had the chance.

  When he began his campaign for president, Bush did not devote a great deal of attention to the subject of the Court. As governor of Texas, he appointed judges with backgrounds much like his own; they were conservatives, but mostly in the corporate rather than the social and evangelical wing of the Republican Party. During the 2000 campaign, Bush sent signals that he would operate much the same way in the White House. In a debate with Al Gore, he was asked whether voters should assume all his judicial appointments would be prolife. “Voters should assume that I have no litmus test on that issue or any other issue,” Bush replied blandly. “The voters will know I’ll put competent judges on the bench.”

  But five years later, when Bush finally had the chance to make an appointment to the Court, he had a very different agenda for his nominees. Inside the White House, “moderation” had gone from a goal to an epithet. The messianic nature of his presidency—Bush’s conception of his time in office as a moment of dramatic change for the world—affected his judicial nominations as much as it did his decisions on the Middle East. Through a combination of the staff he selected, the political strategy underlying his reelection, and his own personal evolution, Bush now sought transformative appointees, justices who would move the Court sharply and immediately to the right.

  Only a few days after the 2000 election was resolved, Bush announced that he would be taking Alberto Gonzales, formerly his chief counsel in Austin, with him to Washington as White House counsel. Gonzales, whom Bush had recently placed on the Texas Supreme Court, chose just one of his local deputies, Stuart Bowen, to go with him. For the remainder of the White House legal staff—the people who would select and vet the candidates for the Supreme Court and other judgeships—the two Texans tapped into the conservative network that had been created two decades earlier for just this opportunity. Conservatives may have represented a lonely minority on law school campuses in the 1980s, but by the new century they constituted a powerful force in Washington. Nothing mattered more to them than taking control of the federal judiciary, especially the Supreme Court.

  The young lawyers on the White House staff had a great deal in common. Virtually all of them were members of the Federalist Society. Many had worked on the various Republican investigations of the Clinton administration during the previous eight years. (Brett M. Kavanaugh was the principal author of the Starr report, Christopher Bartolomucci was an investigator in Senator Alfonse D’Amato’s investigation of Whitewater, and Bradford Berenson became a familiar media commentator on the investigations.) Several others, like Bowen himself and Timothy Flanigan, who ultimately became Gonzales’s deputy, joined up after working for Bush on the recount litigation in Florida. Most had clerked for conservative justices on the Court. (Kennedy clerks like Kavanaugh and Berenson predominated, because the justice tended to hire law clerks who were more conservative than he was.)

  Before the inauguration, the early arrivals on the staff—like Kavanaugh, Berenson, and Helgi Walker, a former Thomas clerk—established themselves in office space reserved for the transition in a downtown Washington building. Among their first assignments was to write what were called “candidate memos”—that is, profiles of prospective appointees to the Court. Nearly fifty, Flanigan was the oldest of the lawyers on the staff and the only one who had served in the first Bush administration, as a high-ranking Justice Department official. He had a basic familiarity with the well-known Republican appointees to the courts of appeals, so he farmed out the writing of about a dozen of the profiles to the junior lawyers. Without contacting the candidates and working only from material in the public domain, they set out to analyze the judges’ suitability for the Court and their chances for confirmation. Some of the memos ran to almost a hundred pages. Their subjects became known as the “short list.”

  After Bush took office in January 2001, the counsel’s operation moved to the Old Executive Office Building, next door to the White House. The lawyers soon turned their attention to the end of the Court’s term in June, a traditional time for justices to announce their retirement; an annual office pool on resignations was set up, with the winner awarded dinner at the AV Ristorante, a run-down Italian restaurant that served as an unofficial clubhouse for conservative lawyers in Washington. (The place was a favorite of Scalia’s until it closed in 2007.) Each year, throughout Bush’s first term, the betting focused on Rehnquist and O’Connor, but the killjoys who chose no resignations always wound up with the free pizza.

  As the years passed without an opening on the Court, the lawyers rotated to other jobs, but one thing rarely changed—the short list. What was especially striking about the list was that it was compiled with little involvement from Gonzales—and none at all from Bush. The president had essentially delegated the matter of Supreme Court appointments to Gonzales, and he turned it over to his young aides. Bush, of course, would make any final decision, but the all-important culling was done almost entirely by some of the most conservative lawyers in the capital. Their priorities were straightforward—movement conservatives only; no “squishes.”

  Gonzales and Flanigan provided minimal guidance. Bush wanted someone with judicial experience and a proven ideological track record. As was often the case in the Bush White House, the president was eager to avoid what he regarded as the mistakes of his predecessors. Bush didn’t want any Clinton-style agonizing or a long public search featuring abundant news leaks. When a vacancy came, the decision should be quick. Nor did Bush want a process like the one that led his father to nominate David Souter—where outsiders like Warren Rudman, then a New Hampshire senator, intervened at the last minute to push his protégé into the mix. That disorderly rush produced a nominee whose views turned out to be a surprise, at least to conservatives. George W. Bush didn’t want any surprises.

  In public, the president invariably relied on the same catch-phrases when describing his favored judicial philosophy. “I believe in strict constructionists—judges who strictly interpret the Constitution and will not use the bench to write social policy,” he said. Or, as he put it on other occasions, he favored judges who would “interpret the law, not legislate from the bench.” Of course, all judges, even the most liberal, believe they are interpreting the law, so Bush’s summary really amounted to a coded reference to the outlines of a judicial philosophy. When Bush said judges were “legislating from the bench,” he meant overturning laws on individual-rights grounds, most notably restrictions on abortion rights. Bush was also talking about judges who prohibited public displays of religious observance. The president—and especially Vice President Cheney—also felt strongly that judges should not interfere with what they felt were the prerogatives of the executive branch in the conduct of foreign policy or military affairs.

  As for a more detailed philosophy, like whether Bush supported the Constitution in Exile—and a return to a 1930s conception of the role of the federal government—no one really knew. During the 2000 campaign, Bush said in passing that he would look for judges in the mold of Scalia and Thomas, but he never repeated that promise, because downplaying it served his political purposes. The vow pleased his conservative base, but most voters ignored it. Still, the Scalia and Thomas remark ended up being the most important guidance the White House lawyers received. Unlike their boss, the young conservatives on Bush’s staff had thought through precisely what stamp they wanted to place on the federal judiciary—and a network of Scalia and Thomas acolytes was precisely what they had in mind.

  The closest Bush came to spelling out what he wanted came every six weeks or so, when he met his judicial selection team, which usually included the vice president, Gonzales, and about a half dozen Justice Department and White House officials. Bush had a businessman’s contempt for lawyers generally, and he viewed the process of choosing judges with impatience. Like most other presidents in recent years, Bush deferred to senators of his party on the selection of trial court judgeships, and he a
lways wanted to know what home-state Republicans thought of appeals court candidates as well. All he needed to know was that a judicial candidate was a “good conservative.” He rarely asked questions about candidates’ judicial philosophy and never gave any sign that he had read their judicial opinions.

  But Bush did have another priority for his judges—diversity. Early in his presidency, when the political divisions in the country were not as toxic as they would become, Bush pressed for women and minorities on the bench. Given the ideological inclinations of the lawyers on his staff, it wasn’t the easiest assignment, but they did initially find a diverse group of judges to send to the Senate. In fact, the nomination of Bush’s first group of judges would be a little-noticed turning point in Bush’s administration.

  Gathered in the East Room on May 9, 2001, the eleven nominees “looked like America,” as the Clinton-era phrase had it. There were two African Americans, including Roger Gregory, whom Clinton himself made a recess appointment to the Fourth Circuit after Senator Jesse Helms blocked a full-fledged appointment, and Barrington Parker Jr., a Clinton appointee to the district court whom Bush was promoting to the Second Circuit. There were also three women—Edith Brown Clement, Deborah Cook, and Priscilla Owen—and a Hispanic, Miguel Estrada, a brilliant Honduran immigrant who was tapped for the D.C. Circuit. “A president has few greater responsibilities than that of nominating men and women to the courts of the United States,” Bush said. “He owes it to the Constitution and to the country to choose with care. I have done so.”