Promised Land (9781524763183)

by Obama Barack

  I had more than a passing knowledge of H1N1 after working on U.S. pandemic preparedness when I was in the Senate. What I knew scared the hell out of me. In 1918, a strain of H1N1 that came to be known as “the Spanish flu” had infected an estimated half a billion people and killed somewhere between 50 and 100 million—roughly 4 percent of the world’s population. In Philadelphia alone, more than 12,000 died in the span of a few weeks. The effects of the pandemic went beyond the stunning death tolls and shutdown of economic activity; later research would reveal that those who were in utero during the pandemic grew up to have lower incomes, poorer educational outcomes, and higher rates of physical disability.

  It was too early to tell how deadly this new virus would be. But I wasn’t interested in taking any chances. On the same day that Kathleen Sebelius was confirmed as HHS secretary, we sent a plane to pick her up from Kansas, flew her to the Capitol to be sworn in at a makeshift ceremony, and immediately asked her to spearhead a two-hour conference call with WHO officials and health ministers from Mexico and Canada. A few days later, we pulled together an interagency team to evaluate how ready the United States was for a worst-case scenario.

  The answer was, we weren’t at all ready. Annual flu shots didn’t provide protection against H1N1, it turned out, and because vaccines generally weren’t a moneymaker for drug companies, the few U.S. vaccine makers that existed had a limited capacity to ramp up production of a new one. Then we faced questions of how to distribute antiviral medicines, what guidelines hospitals used in treating cases of the flu, and even how we’d handle the possibility of closing schools and imposing quarantines if things got significantly worse. Several veterans of the Ford administration’s 1976 swine flu response team warned us of the difficulties involved in getting out in front of an outbreak without overreacting or triggering a panic: Apparently President Ford, wanting to act decisively in the middle of a reelection campaign, had fast-tracked mandatory vaccinations before the severity of the pandemic had been determined, with the result that more Americans developed a neurological disorder connected to the vaccine than died from the flu.

  “You need to be involved, Mr. President,” one of Ford’s staffers advised, “but you need to let the experts run the process.”

  I put my arm around Sebelius’s shoulders. “You see this?” I said, nodding her way. “This…is the face of the virus. Congratulations, Kathleen.”

  “Happy to serve, Mr. President,” she said brightly. “Happy to serve.”

  My instructions to Kathleen and the public health team were simple: Decisions would be made based on the best available science, and we were going to explain each step of our response to the public—including detailing what we did and didn’t know. Over the course of the next six months, we did exactly that. A summertime dip in H1N1 cases gave the team time to work with drugmakers and incentivize new processes for quicker vaccine production. They pre-positioned medical supplies across regions and gave hospitals increased flexibility to manage a surge in flu cases. They evaluated—and ultimately rejected—the idea of closing schools for the rest of the year, but worked with school districts, businesses, and state and local officials to make sure that everyone had the resources they needed to respond in the event of an outbreak.

  Although the United States did not escape unscathed—more than 12,000 Americans lost their lives—we were fortunate that this particular strain of H1N1 turned out to be less deadly than the experts had feared, and news that the pandemic had abated by mid-2010 didn’t generate headlines. Still, I took great pride in how well our team had performed. Without fanfare or fuss, not only had they helped keep the virus contained, but they’d strengthened our readiness for any future public health emergency—which would make all the difference several years later, when the Ebola outbreak in West Africa would trigger a full-blown panic.

  This, I was coming to realize, was the nature of the presidency: Sometimes your most important work involved the stuff nobody noticed.

  * * *

  —

  THE SECOND TURN of events was an opportunity rather than a crisis. At the end of April, Supreme Court justice David Souter called to tell me he was retiring from the bench, giving me my first chance to fill a seat on the highest court in the land.

  Getting somebody confirmed to the Supreme Court has never been a slam dunk, in part because the Court’s role in American government has always been controversial. After all, the idea of giving nine unelected, tenured-for-life lawyers in black robes the power to strike down laws passed by a majority of the people’s representatives doesn’t sound very democratic. But since Marbury v. Madison, the 1803 Supreme Court case that gave the Court final say on the meaning of the U.S. Constitution and established the principle of judicial review over the actions of the Congress and the president, that’s how our system of checks and balances has worked. In theory, Supreme Court justices don’t “make law” when exercising these powers; instead, they’re supposed to merely “interpret” the Constitution, helping to bridge how its provisions were understood by the framers and how they apply to the world we live in today.

  For the bulk of constitutional cases coming before the Court, the theory holds up pretty well. Justices have for the most part felt bound by the text of the Constitution and precedents set by earlier courts, even when doing so results in an outcome they don’t personally agree with. Throughout American history, though, the most important cases have involved deciphering the meaning of phrases like “due process,” “privileges and immunities,” “equal protection,” or “establishment of religion”—terms so vague that it’s doubtful any two Founding Fathers agreed on exactly what they meant. This ambiguity gives individual justices all kinds of room to “interpret” in ways that reflect their moral judgments, political preferences, biases, and fears. That’s why in the 1930s a mostly conservative Court could rule that FDR’s New Deal policies violated the Constitution, while forty years later a mostly liberal Court could rule that the Constitution grants Congress almost unlimited power to regulate the economy. It’s how one set of justices, in Plessy v. Ferguson, could read the Equal Protection Clause to permit “separate but equal,” and another set of justices, in Brown v. Board of Education, could rely on the exact same language to unanimously arrive at the opposite conclusion.

  It turned out that Supreme Court justices made law all the time.

  Over the years, the press and the public started paying more attention to Court decisions and, by extension, to the process of confirming justices. In 1955, southern Democrats—in a fit of pique over the Brown decision—institutionalized the practice of having Supreme Court nominees appear before the Senate Judiciary Committee to be grilled on their legal views. The 1973 Roe v. Wade decision focused further attention on Court appointments, with every nomination from that point on triggering a pitched battle between pro-choice and anti-abortion forces. The high-profile rejection of Robert Bork’s nomination in the late 1980s and the Clarence Thomas–Anita Hill hearings in the early 1990s—in which the nominee was accused of sexual harassment—proved to be irresistible TV drama. All of which meant that when it came time for me to replace Justice Souter, identifying a well-qualified candidate was the easy part. The hard part would be getting that person confirmed while avoiding a political circus that could sidetrack our other business.

  We already had a team of lawyers in place to manage the process of filling scores of lower court vacancies, and they immediately began compiling an exhaustive list of possible Supreme Court candidates. In less than a week, we’d narrowed it down to a few finalists, who would be asked to submit to an FBI background check and come to the White House for an interview. The short list included former Harvard Law School dean and current solicitor general Elena Kagan and Seventh Circuit appellate judge Diane Wood, both first-rate legal scholars whom I knew from my time teaching constitutional law at the University of Chicago. But as I read through the fat briefing books my
team had prepared on each candidate, it was someone I’d never met, Second Circuit appellate judge Sonia Sotomayor, who most piqued my interest. A Puerto Rican from the Bronx, she’d been raised mostly by her mom, a telephone operator who eventually earned her nurse’s license, after her father—a tradesman with a third-grade education—died when Sonia was just nine years old. Despite speaking mostly Spanish at home, Sonia had excelled in parochial school and won a scholarship to Princeton. There, her experiences echoed what Michelle would encounter at the university a decade later: an initial sense of uncertainty and displacement that came with being just one of a handful of women of color on campus; the need to sometimes put in extra work to compensate for the gaps in knowledge that more privileged kids took for granted; the comfort of finding community among other Black students and supportive professors; and the realization over time that she was as smart as any of her peers.

  Sotomayor graduated from Yale Law School and went on to do standout work as a prosecutor in the Manhattan district attorney’s office, which helped catapult her to the federal bench. Over the course of nearly seventeen years as a judge, she’d developed a reputation for thoroughness, fairness, and restraint, ultimately leading the American Bar Association to give her its highest rating. Still, when word leaked that Sotomayor was among the finalists I was considering, some in the legal priesthood suggested that her credentials were inferior to those of Kagan or Wood, and a number of left-leaning interest groups questioned whether she had the intellectual heft to go toe-to-toe with conservative ideologues like Justice Antonin Scalia.

  Maybe because of my own background in legal and academic circles—where I’d met my share of highly credentialed, high-IQ morons and had witnessed firsthand the tendency to move the goalposts when it came to promoting women and people of color—I was quick to dismiss such concerns. Not only were Judge Sotomayor’s academic credentials outstanding, but I understood the kind of intelligence, grit, and adaptability required of someone of her background to get to where she was. A breadth of experience, familiarity with the vagaries of life, the combination of brains and heart—that, I thought, was where wisdom came from. When asked during the campaign what qualities I’d look for in a Supreme Court nominee, I had talked not only about legal qualifications but also about empathy. Conservative commentators had scoffed at my answer, citing it as evidence that I planned to load up the Court with woolly-headed, social-engineering liberals who cared nothing about the “objective” application of the law. But as far as I was concerned, they had it upside down: It was precisely the ability of a judge to understand the context of his or her decisions, to know what life was like for a pregnant teen as well as for a Catholic priest, a self-made tycoon as well as an assembly-line worker, the minority as well as the majority, that was the wellspring of objectivity.

  There were other considerations that made Sotomayor a compelling choice. She’d be the first Latina—and only the third woman—to serve on the Supreme Court. And she’d already been confirmed twice by the Senate, once unanimously, making it harder for Republicans to argue that she was an unacceptable choice.

  Given my high regard for Kagan and Wood, I was still undecided when Judge Sotomayor came to the Oval Office for a get-to-know-you session. She had a broad, kind face and a ready smile. Her manner was formal and she chose her words carefully, though her years at Ivy League schools and on the federal bench hadn’t sanded away the Bronx accent. I’d been warned by my team not to ask candidates their positions on specific legal controversies like abortion (Republicans on the committee were sure to ask about any conversation between me and a nominee to see if I had applied a “litmus test” in making my choice). Instead, the judge and I talked about her family, her work as a prosecutor, and her broad judicial philosophy. By the end of the interview, I was convinced that Sotomayor had what I was looking for, although I didn’t say so on the spot. I did mention that there was one aspect of her résumé that I found troubling.

  “What’s that, Mr. President?” she asked.

  “You’re a Yankees fan,” I said. “But since you grew up in the Bronx and were brainwashed early in life, I’m inclined to overlook it.”

  A few days later, I announced my selection of Sonia Sotomayor as a Supreme Court nominee. The news was positively received, and in the run-up to her appearance before the Senate Judiciary Committee, I was happy to see that Republicans had trouble identifying anything in the judge’s written opinions or conduct on the bench that might derail her confirmation. Instead, they fastened on two race-related issues to justify their opposition. The first involved a 2008 case in New Haven, Connecticut, in which Sotomayor joined the majority in ruling against a group of primarily white firefighters who’d filed a “reverse discrimination” claim. The second issue concerned a 2001 speech Sotomayor had delivered at the University of California, Berkeley, in which she’d argued that female and minority judges added a much-needed perspective to the federal courts, triggering charges from conservatives that she was incapable of impartiality on the bench.

  Despite the temporary dustup, the confirmation hearings proved anticlimactic. Justice Sotomayor was confirmed by a Senate vote of 68–31, with nine Republicans joining all the Democrats except for Teddy Kennedy, who was undergoing treatment for his cancer—about as much support as any nominee was likely to get, given the polarized environment we were operating in.

  Michelle and I hosted a reception for Justice Sotomayor and her family at the White House in August, after she was sworn in. The new justice’s mother was there, and I was moved to think what must be going through the mind of this elderly woman who’d grown up on a distant island, who’d barely spoken English when she had signed up for the Women’s Army Corps during World War II, and who, despite the odds stacked against her, had insisted that somehow her kids would count for something. It made me think of my own mother, and Toot and Gramps, and I felt a flash of sorrow that none of them had ever had a day like this, that they were gone before they’d seen what their dreams for me had come to.

  Tamping down my emotions as the justice spoke to the audience, I looked over at a pair of handsome young Korean American boys—Sotomayor’s adopted nephews—squirming in their Sunday best. They would take for granted that their aunt was on the U.S. Supreme Court, shaping the life of a nation—as would kids across the country.

  Which was fine. That’s what progress looks like.

  * * *

  —

  THE SLOW MARCH toward healthcare reform consumed much of the summer. As the legislation lumbered through Congress, we looked for any opportunity to help keep the process on track. Since the White House summit in March, members of my healthcare and legislative teams had participated in countless meetings on the subject up on Capitol Hill, trudging into the Oval at the end of the day like weary field commanders back from the front, offering me reports on the ebb and flow of battle. The good news was that the key Democratic chairs—especially Baucus and Waxman—were working hard to craft bills they could pass out of their respective committees before the traditional August recess. The bad news was that the more everyone dug into the details of reform, the more differences in substance and strategy emerged—not just between Democrats and Republicans but between House and Senate Democrats, between us and congressional Democrats, and even between members of my own team.

  Most of the arguments revolved around the issue of how to generate a mix of savings and new revenue to pay for expanding coverage to millions of uninsured Americans. Because of his own inclinations and his interest in producing a bipartisan bill, Baucus hoped to avoid anything that could be characterized as a tax increase. Instead, he and his staff had calculated the windfall profits that a new flood of insured customers would bring to hospitals, drug companies, and insurers and had used those figures as a basis for negotiating billions of dollars in up-front contributions through fees or Medicare payment reductions from each industry. To sweeten the deal, Baucus was also pr
epared to make certain policy concessions. For example, he promised the pharmaceutical lobbyists that his bill wouldn’t include provisions allowing the reimportation of drugs from Canada—a popular Democratic proposal that highlighted the way Canadian and European government-run healthcare systems used their massive bargaining power to negotiate much cheaper prices than Big Pharma charged inside the United States.

  Politically and emotionally, I would’ve found it a lot more satisfying to just go after the drug and insurance companies and see if we could beat them into submission. They were wildly unpopular with voters—and for good reason. But as a practical matter, it was hard to argue with Baucus’s more conciliatory approach. We had no way to get to sixty votes in the Senate for a major healthcare bill without at least the tacit agreement of the big industry players. Drug reimportation was a great political issue, but at the end of the day, we didn’t have the votes for it, partly because plenty of Democrats had major pharmaceutical companies headquartered or operating in their states.

  With these realities in mind, I signed off on having Rahm, Nancy-Ann, and Jim Messina (who had once been on Baucus’s staff) sit in on Baucus’s negotiations with healthcare industry representatives. By the end of June, they’d hashed out a deal, securing hundreds of billions of dollars in givebacks and broader drug discounts for seniors using Medicare. Just as important, they’d gotten a commitment from the hospitals, insurers, and drug companies to support—or at least not oppose—the emerging bill.