Taking on the Supreme Court Case
When it came to vetting potential nominees, the vice president steered the selection committee.
In May 2005, a small group of the president's senior advisers gathered to weigh a historic choice: who should succeed an ailing William H. Rehnquist as chief justice of the United States.
The meeting wasn't held at the White House or the Justice Department. And the highest-ranking official in the room wasn't the attorney general, the White House chief of staff, the White House counsel or the president's chief political adviser, although they were all there.
It was Vice President Cheney, and it was to an unpretentious room off the vice president's quarters that potential candidates were summoned for interviews.
The handful of candidates who survived a grilling of more than two hours by the Cheney-led selection committee would go on to what one participant described as a much shorter and "far more relaxed" interview with the president. President Bush seemed more interested in personal matters than in case law. By contrast, Cheney pressed for information that would shed light on the candidates' legal philosophies, demonstrating a sophisticated knowledge of doctrine and, without crossing the line by asking about specific cases, leaving a clear impression of the constitutional issue he considered paramount.
"I think one of the reasons that this is a primary interest of Cheney's is 9/11," the participant said. "Questions about every aspect of the government's war on terrorism could come before the courts."
That Cheney should play such an unprecedented role in vetting potential candidates is a measure of the trust Bush places in him, said David A. Yalof, who wrote a book about the history of Supreme Court selections. Senior aides to former vice presidents Al Gore, Dan Quayle and George H.W. Bush said that their old bosses' involvement was cursory by comparison.
From the start of his administration, aides said, Bush had made clear his desire for diversity on the federal bench, pressing his staff to consider qualified women and minorities, according to participants in the selection process. The subject of judicial appointments also animated the normally reserved Cheney, who rarely makes his views known in group settings with the president. Cheney's primary concern was ensuring that potential picks be reliably conservative.
"Some of the few times I can remember the vice president speaking up in an Oval Office meeting was on this subject," said former White House lawyer Bradford A. Berenson.
The Cheney-led selection group started with 11 potential Supreme Court finalists that included women and minorities and whose dossiers had been forwarded to Bush. They then culled that list, recommending that the president interview just five, according to two former senior White House officials with direct knowledge. They were U.S. Court of Appeals Judges John G. Roberts Jr., Samuel A. Alito Jr., James Harvie Wilkinson III, J. Michael Luttig and Edith Brown Clement.
All five finalists were white. All but one were men. What they shared were clear records of support for the positions most important to Cheney.
Collectively, the group had expansive views on executive power and limited views of congressional authority. One judge had already given the administration a victory in its quest, championed by Cheney, to detain terrorism suspects indefinitely. Two other candidates would soon bless other aspects of the administration's terrorism policies. The majority also had records indicating that they shared Cheney's view that affirmative action was unconstitutional, and one had sided with power companies in a case involving a pollution rule Cheney considered overly burdensome.
On July 19, 2005, Bush drew from the pool of five in nominating Roberts to fill the seat of Sandra Day O'Connor, who was retiring.
The office of the vice president took the lead in developing a strategic communications plan to sell Roberts to the public and to the senators who would vote to confirm him. Then, in early September, Rehnquist died. The president moved Roberts to chief justice. That still left another vacancy, one that would give Bush the opportunity to definitively shift the court to the right.
And that is when the president departed from the list.
First, Bush openly speculated about making his longtime friend and aide Alberto R. Gonzales the first Hispanic on the court. Conservatives, who saw the attorney general as insufficiently devoted to their cause on issues such as affirmative action and abortion mobilized against the former Texas judge, slipping intelligence on Gonzales's background to Cheney's office.
"In general, on Supreme Court judicial selection issues, conservatives would talk to Karl Rove but also would make sure to communicate expectations to the office of the vice president," said Leonard A. Leo, a conservative leader who was involved in the nomination process.
Conservatives got their way on Gonzales, only to find themselves confronted with what many considered an even worse choice. On Oct. 2, White House Chief of Staff Andrew H. Card Jr. was dispatched to tell Cheney that Bush had nominated White House counsel Harriet E. Miers, another longtime Texas associate, to fill the Supreme Court vacancy. "Didn't have the nerve to tell me himself," Cheney muttered to an associate in a rare display of pique with the president.
Cheney's office disputed that account. "The vice president did not say that," said his spokeswoman, Lea Anne McBride.
In any case, Cheney did as he often does when he disagrees with a policy decision by the president -- he loyally defended it. Within hours of the announcement the following day, he was on the air reassuring conservative radio host Rush Limbaugh. "You'll be proud of Harriet's record, Rush," he said. "Trust me."
"It's fair to say that he wasn't thrilled by that nomination," said one former senior White House official. "But he's a good trouper."
In the end, Miers was forced to withdraw amid a firestorm of criticism from the right. Bush then nominated Alito, a white male federal appellate judge. This time, he stuck to the Cheney committee's list.
-- Jo Becker and Barton Gellman
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