Takeover, page 34
4.
The importance of the Roberts nomination would soon intensify. On September 4, 2005, Supreme Court chief justice William Rehnquist died from thyroid cancer. Bush decided to change the nomination so that Roberts would fill Rehnquist’s seat as chief justice rather than O’Connor’s seat as an associate justice.
Many commentators suggested that the change lowered the stakes of the nomination because Rehnquist was perceived as a solid conservative vote, so even if Roberts turned out to be very conservative, his presence in Rehnquist’s seat would not alter the outcome of any cases. These observers, however, were focused on social issues, such as abortion rights, giving little attention to how the change could affect rulings on presidential power. True, when compared with very liberal justices, Rehnquist was generally sympathetic to claims of broad presidential power, as one might expect from the former head of the Office of Legal Counsel for the Nixon administration. But Rehnquist came from an older generation of conservatives who remembered the fights Republicans in Congress had waged against Democratic presidents—Roosevelt and Truman—who were the first to expand executive power and set the “imperial presidency” in motion. Rehnquist, moreover, had clerked for Justice Robert Jackson in 1952, when Jackson penned his famous opinion laying out the limits of presidential power in the steel-seizure case. All of this made Rehnquist more suspicious of untrammeled presidential power than were the GOP activists who came of age during the Reagan years, such as Roberts. It had been Rehnquist, after all, who authored the 1987 decision rejecting the Unitary Executive Theory in the independent-counsel case. And in 2004, rejecting the views of the Bush-Cheney administration, Rehnquist had joined the O’Connor opinion holding that before the president can imprison a U.S. citizen as an “enemy combatant,” the detainee must be given a fair hearing and legal representation.
Moreover, few in the media focused on the special administrative power wielded by the chief justice. Among his most important functions is the power to handpick which federal judges will sit on the secret Foreign Intelligence Surveillance Court, which must sign off on wiretaps and clandestine break-ins on U.S. soil conducted for counterintelligence and counterterrorism investigations. As chief justice, Roberts would be in a position to select judges for the national security court who were either likely to be skeptical or deferential to executive branch claims.
On September 29, 2005, the Senate voted 78–22 to confirm Roberts as the nation’s seventeenth chief justice. Half of the chamber’s forty-four Democrats ultimately voted for him, in acknowledgment of Roberts’s stellar credentials, his smooth demeanor, and his polished testimony. Senator Leahy explained his decision to vote for Roberts like this: “Judge Roberts is a man of integrity. I can only take him at his word that he does not have an ideological agenda.”21
Shortly after the Senate vote, Roberts went to the White House for a brief swearing-in ceremony at the center of executive power. Afterwards, he said, “I view the vote this morning as confirmation of what is for me a bedrock principle—that judging is different from politics.” There would be decades to measure his voting record against that principle; Roberts was fifty years old on the day he took the oath, becoming the youngest man in more than two centuries to inherit the most powerful life-tenured position in U.S. government.22
A few months after he was installed as the new chief justice, Roberts got his first opportunity to pick a member of the Foreign Intelligence Surveillance Court. In December 2005, when it was revealed that Bush authorized the military to wiretap without warrants and circumvented the national security court, Judge James Robertson—the same federal district judge who struck down Bush’s military commissions in the Hamdan case—resigned from his FISC seat in apparent protest of the program.23 Roberts decided to fill the vacancy with Judge John Bates, the same federal district judge who sided with Cheney in dismissing the General Accounting Office’s lawsuit seeking access to the energy task force records, a ruling that sharply undercut the congressional watchdog agency’s ability to probe the executive branch.
5.
The lopsided confirmation of Roberts to be chief justice was a resounding political victory for the White House and a rare bright spot amid the fallout from the slow federal response to the Hurricane Katrina disaster along the Gulf Coast. Now, with Roberts installed in Rehnquist’s seat, O’Connor still needed to be replaced. After more than ten years without a Supreme Court confirmation fight, the country was going to get two in a row. And there were signs that the second nomination battle was going to be tougher. Liberal activist groups such as the Alliance for Justice and People for the American Way had been preparing for years for the next Supreme Court vacancy, and they were outraged that Democrats had not put up a tougher fight against Roberts. Moreover, the second pick would have a greater impact on the outcome of a wider range of cases. While Roberts was unlikely to vote strikingly differently than his conservative predecessor Rehnquist had on social issues, O’Connor had been the Court’s leading moderate and swing vote. If the justice who replaced her was more conservative on social issues, the outcome of cases involving such hotly disputed matters as affirmative action and the death penalty might flip.
Perhaps hoping to deflect some of the coming attacks, Bush signaled that he would pick a woman or a minority for the seat, telling reporters that he understood that “diversity is one of the strengths of the country.” But very few people on either side of the political aisle expected the choice he announced at just past 8 a.m. on October 3, 2005—the first day of the Supreme Court’s term. Appearing beside Bush was his own White House counsel and his longtime attorney dating back to his Texas days, Harriet Miers.
At first glance, the choice seemed inexplicable. Miers had won respect as a corporate attorney in Dallas, where she rose to the top of a major law firm and was the head of the State Bar of Texas. But she had no constitutional law experience and no reputation as a first-rate legal thinker, conservative or otherwise. Educated at Southern Methodist University, a low-ranking law school, Miers had never been a judge, nor published an academic law journal article. Almost nobody—liberals and conservatives alike—believed that Miers was remotely qualified to hold one of nine life-tenured seats on the Supreme Court. In the immediate wake of the Hurricane Katrina disaster and the questions it raised about Bush’s choice of Michael Brown, who had no emergency management experience, as director of the Federal Emergency Management Agency, Miers was immediately decried as yet another unqualified crony.
The furor was particularly intense among conservative activists who had helped shepherd Roberts’s nomination to its successful conclusion. The first blow was struck at 8:12 a.m., almost before Bush had finished speaking. Reporters glanced down at their buzzing BlackBerrys to discover an e-mail from Manuel Miranda, who organized more than 150 grassroots groups of social conservatives to build support for confirming Bush’s judicial picks through the umbrella group Third Branch Conference. Miranda was brutal: “The reaction of many conservatives today will be that the president has made possibly the most unqualified choice since Abe Fortas who had been [President Lyndon B. Johnson’s] lawyer. The nomination of a nominee with no judicial record is a significant failure for the advisers that the White House gathered around it.”24
Conservative criticism would only grow more harsh. Former judge Robert Bork, the conservative jurist whose 1987 failed confirmation marked a milestone in partisan rancor, told MSNBC that Miers’s nomination was “a disaster on every level” because she was “a woman who’s undoubtedly as wonderful a person as they say she is, but so far as anyone can tell she has no experience with constitutional law whatever. Now it’s a little late to develop a constitutional philosophy or begin to work it out when you’re on the court already. So that—I’m afraid she’s likely to be influenced by factors, such as personal sympathies and so forth, that she shouldn’t be influenced by. I don’t expect that she can be, as the president says, a great justice.”25 The day after the nomination, George F. Will turned in a column submitting that “the president’s ‘argument’ for her amounts to: Trust me. There is no reason to, for several reasons. [Bush] has neither the inclination nor the ability to make sophisticated judgments about competing approaches to construing the Constitution. Few presidents acquire such abilities in the course of their pre-presidential careers, and this president particularly is not disposed to such reflections.”26
Adding to the tensions, conflicting documents emerged indicating that Miers might harbor moderate views about abortion rights and affirmative action.27 Evangelical groups protested that Miers could not be counted on to vote for their key goal: overturning Roe v. Wade. Bush sought to assure them otherwise, sending a thinly disguised message that they could trust her because she herself was an evangelical Christian.28 But the campaign only further alienated many conservatives, who said it was inappropriate to make Miers’s religion part of her credentials or to argue that she would vote for the “right” outcomes of cases. Soon, conservative-opinion leaders were openly calling for the Miers nomination to be defeated. Former White House speechwriter David Frum, who had drafted Bush’s famous “axis of evil” speech, announced he would run campaign commercials calling for Miers to be rejected.
Then, amid the clamor, a dispute over executive power arose. The Senate asked to see Miers’s White House memos in order to judge the quality of her legal work, and the White House said disclosing such documents would violate executive privilege. The dispute was roundly seen as a trumped-up face-saving reason for pulling the nomination, as such a request was obviously foreseeable before she was nominated, and because conservative commentator Charles Krauthammer had suggested engineering a scenario of “irreconcilable differences over documents” in an October 21 column entitled “The Only Exit Strategy.”29 Bush followed Krauthammer’s advice when he withdrew Miers’s nomination on October 27, 2005—just over three weeks after she was announced.
“It is clear that Senators would not be satisfied until they gained access to internal documents concerning advice provided during her tenure at the White House—disclosures that would undermine a President’s ability to receive candid counsel,” Bush said. “Harriet Miers’s decision demonstrates her deep respect for this essential aspect of the Constitutional separation of powers—and confirms my deep respect and admiration for her.”30
So, why did Bush nominate Miers? The conventional wisdom was that the fiasco was simply the result of Bush’s feckless enjoyment of the power his office gave him to reward his friends. But in fact, Miers was a sound pick by the Bush-Cheney administration on an issue about which they cared deeply: executive power. Bush needed to pick a female justice for political reasons, but executive branch experience was almost nonexistent in the résumés of the female conservative appeals court judges and state supreme court judges favored by conservative legal activists.31 Miers, however, could be counted on to embrace Bush’s expansive view of presidential powers. First of all, she was deeply loyal to Bush and, through him, to the institution he represented. Among two thousand pages of official correspondence and personal notes released by the Texas State Library and Archives Commission after her nomination was a letter she had written then–Texas governor Bush for his fifty-first birthday in July 1997: “You are the best governor ever—deserving of great respect.” Other papers had her pronouncing her patron “cool” and “the greatest!” and declaring Texas “blessed” for his leadership.32 With such an adoring view, Miers could be easily envisioned as providing solid support for any presidential claim of power that might come before the Court.
Moreover, even though it was Cheney-associated lawyers such as David Addington and John Yoo who had done the heavy lifting of crafting legal arguments in favor of virtually unrestricted presidential power since the attacks of September 11, 2001, Miers, along with every other White House attorney, had been absorbing and internalizing those arguments for years.33 Like Roberts before her, she was an executive branch lawyer who identified with the task of defending the prerogatives of the president.
To be sure, the evidence that Miers was likely to be another executive power absolutist was not completely without exception. Years earlier, she had argued against expanding government powers in the face of security threats. In July 1992, as the president of the Texas Bar Association, Miers warned against responding to a courtroom shooting spree by infringing “on precious, constitutionally guaranteed freedoms.” Writing in Texas Lawyer magazine, Miers had argued, “The same liberties that ensure a free society make the innocent vulnerable to those who prevent rights and privileges and commit senseless and cruel acts. Those precious liberties include free speech, freedom to assemble, freedom of liberties, access to public places, the right to bear arms, and freedom from constant surveillance. We are not willing to sacrifice these rights because of the acts of maniacs.” But Miers had written that column a decade before moving to Washington and going to work for a president she adored amid the new threats of the war on terrorism, where the maniac might be holding a suitcase nuke instead of a handgun. In a speech in April 2005 before a GOP lawyers’ group, she sounded a different note, arguing that reauthorizing the USA Patriot Act was “critical,” because it had been “used in so many ways to help protect this nation and its people and in the war on terror.” She made this speech in the context of bipartisan calls to amend the law with checks on new surveillance powers. There were other signs that her views had changed. Bill Goodman, legal director of the Center for Constitutional Rights, which sued Bush on behalf of prisoners at Guantánamo, for example, tried to raise alarm about Miers’s nomination in the wake of Roberts. “The fact that the president is now seeding the Supreme Court with people who have been handmaidens in his efforts to increase the power of the executive without any check or oversight whatsoever is very disturbing,” he said. And Leonard Leo of the conservative Federalist Society, who was one of the few outside legal activists not to break with the White House over the Miers nomination, invoked her association with Bush’s terrorism policies in a vain attempt to assuage fears among fellow conservatives that she was too moderate. “In her work respecting the War on Terror and the threats posed to our country by misuse of foreign and international law, Ms. Miers has applied the Constitution as the Framers wrote it,” Leo wrote.34
One final incident from the last days of her doomed nomination may have revealed the extent to which Miers had come to identify with the administration’s aggressive views of far-reaching executive powers. The Senate Judiciary Committee sent Miers a questionnaire to fill out listing her background and experiences with constitutional law, as is standard practice. When she returned the document, it was decried across party lines for being short on details and specifics. Specter and Leahy vowed to essentially make her redo the questionnaire, a humiliation she was spared by her withdrawal. But lost among the bipartisan insults over the depth of her answers was a telling detail of what Miers had said. Among her chief qualifications to sit on the Supreme Court, she wrote, was the fact that her time as counsel to Bush had given her significant constitutional experience in “presidential prerogatives, the separation of powers, executive authority, and the constitutionality of proposed regulations and statutes.” And she later added, “My time serving in the White House, particularly as Counsel to the President, has given me a fuller appreciation of the role of the separation of powers in maintaining our constitutional system. In that role, I have frequently dealt with matters concerning the nature and role of the executive power.”35
6.
On October 31, 2005, four days after Bush withdrew Miers’s name, he called another 8 a.m. press conference. Standing in the White House’s Cross Hall, he introduced a replacement nominee: Samuel Alito Jr., a judge on the Third Circuit Court of Appeals. Alito was well known in conservative legal circles—a member of the Federalist Society with more than a decade of written opinions as an appeals court judge and with a top-notch pedigree, including a Yale Law School degree. Conservative activist groups quickly closed ranks behind the White House and backed his nomination. Liberal activist groups, which had sat on the sidelines during the conservative meltdown in October, also geared back up into action, eager to portray Alito as a threat.
Bush made no direct mention of the Miers nomination debacle that Halloween morning, but his remarks introducing Alito emphasized the ways in which the replacement pick was strong in all the places where Miers had been inadequate. Bush emphasized Alito’s intellect and experience, noting his Ivy League credentials and calling him “one of the most accomplished and respected judges in America,” whose fifteen years on the bench gave him “more prior judicial experience than any Supreme Court nominee in more than seventy years.”36 All this was true. But in one key respect Alito was like Miers, just as Miers was like Roberts.
First, like Miers and Roberts before him, Alito had spent his formative years in the federal government as an executive branch attorney. Alito joined the Reagan administration solicitor general’s office in August 1981, then switched to the Justice Department’s Office of Legal Counsel four years later. Reagan named Alito to be a U.S. Attorney in March 1987, taking him out of the White House amid the Iran-Contra scandal, and in February 1990, Bush’s father had made Alito a federal judge on the U.S. Court of Appeals for the Third Circuit. Because few cases involving the federal government go through the Third Circuit, which covers New Jersey and Pennsylvania, Alito had not made any decisions as directly on point to executive power as Roberts’s votes in cases about the military tribunal and Cheney’s energy papers. But in many other respects, his leanings as an executive power absolutist were even clearer in his record.
