![]() J. Scott Applewhite, Associated Press George W. Bush's Supreme Court: Front row from left: Associate Justice Anthony M. Kennedy, Associate Justice John Paul Stevens, Chief Justice of the United States John G. Roberts, Associate Justice Antonin Scalia, and Associate Justice David Souter. Back row, from left: Associate Justice Stephen Breyer, Associate Justice Clarence Thomas, Associate Justice Ruth Bader Ginsburg and Associate Justice Samuel Anthony Alito Jr. |
Jan Crawford Greenburg's eloquent book, subtitled "The Inside Story of the Struggle for Control of the United States Supreme Court," is the most illuminating account to date of the political and ideological forces that shaped the current court.
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By Jan Crawford Greenburg |
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Greenburg, an ABC News legal correspondent who has been covering the court for more than a decade, manages to unlock the door to a famously secret institution.
Relying on personal interviews with justices, White House insiders and others, Greenburg provides a rich account of the birth of today's conservative court led by Chief Justice John Roberts.
Greenburg's story begins with a poignant moment as an ailing Chief Justice Rehnquist, thin and gray-skinned from cancer, knows he is dying. Yet he has decided not to step down at the end of the term.
Justice Sandra Day O'Connor, the court's first woman jurist, had intended to wait another year before retiring. Now Rehnquist tells his former Stanford Law School classmate, "I don't think we need two vacancies."
For the good of the court, O'Connor announces that she is retiring a year early.
Fate's hand, however, created two vacancies soon enough. By September 2005, mourners were gathering inside the court's Great Hall to pay their respects to the 16th chief justice.
The Rehnquist court, Greenburg recounts, had proven "deeply disappointing" to stalwart conservatives. Too many key decisions had swung to the center or to the left. The right wing was still stung by the liberal Democrats' skewering of Robert Bork in 1987, and the miscalculation of President George H.W. Bush in scuttling Solicitor General Kenneth Starr and instead appointing David Souter (now considered a strong liberal) to a vacancy.
His son finally had the opportunity to achieve what not even his father or Ronald Reagan could accomplish.
In a series of intriguing chapters, Greenburg provides the behind-the-scenes story of how John Roberts and Samuel Alito emerged to receive the presidential appointment.
Roberts' first interview in the White House nearly knocked him out of the running. Attorney General Alberto Gonzales, Vice President Dick Cheney, White House Counsel Harriet Miers and other Bush advisers considered his performance "underwhelming," in large part because he did not strut his conservative stripes.
Bush flirted with the idea of nominating Gonzales to the court, in order to make history by appointing the first Mexican-American justice. Yet conservatives fought off this plan, declaring that "Gonzales" was Spanish for "Souter."
When O'Connor learned that President Bush had selected Roberts to fill her vacancy in July of 2005, she was "sad" and "disappointed." Although she believed that Roberts possessed a brilliant legal mind, she was "not a little annoyed" at the president's decision.
"He's good in every way," O'Connor said of her potential replacement, "except he's not a woman."
One week before Roberts' scheduled confirmation hearings in late August, Hurricane Katrina decimated New Orleans and the Bush administration was suddenly exposed to scathing criticism. Days later, Chief Justice Rehnquist was dead. Greenburg explains that the stage was set for a defining moment in the court's life -- Bush was selecting a chief justice and an associate justice as he fought for his political life.
Some highlights:
Although White House advisers revered Justice Antonin Scalia for his outspoken conservative style, he was considered "too old" for the chief justice job at age 69.
Justice Anthony Kennedy had "been on a campaign" to become the chief, enlisting influential former clerks to call the White House and to "lobby" for his appointment. Kennedy, however, had made his bed with the centrists, avoiding the strict conservative wing of the court. As far as the White House was concerned, Kennedy "was not an option."
Bush's ill-fated decision to nominate Miers, his counsel from Texas, came about because Chief of Staff Andrew Card declared: "No white guys."
In another political environment, Miers may have survived. But with the fallout from the Katrina disaster and charges of Bush cronyism, her nomination was extinguished by both liberals and conservatives.
Sam Alito, the mild-mannered, "cerebral" federal appeals judge from New Jersey, was more surprised than anyone when his teenage daughter called his judicial chambers to tell him the White House was looking for him. Alito had been interviewed by the White House on two previous occasions and passed over. He believed that ship had already sailed.
But Karl Rove and Cheney had been impressed with the "polite, quiet and respectful" Alito, during earlier stages of vetting.
The White House advisers were so taken with Alito's judicial experience and his humility that Bush called him the day after Miers withdrew, offering him the appointment.
Greenburg's story ends with the swift confirmation of Roberts, and the unsuccessful attempt by Senate Democrats to throw a roadblock in front of Alito's confirmation.
After several days of Alito patiently answering questions in the Senate chamber, "the fight had completely left the room."
Through this largely unplanned sequence of events, the present Supreme Court was born. Greenburg concludes that two new members through chance and good timing will be in a position to achieve what other conservatives before them could never accomplish.
Because their styles are less caustic and "bold" than those of conservative judicial icons like Scalia and Bork, Greenburg predicts that Roberts and Alito will be in an unprecedented position to "build alliances and working majorities."
That prediction, of course, is one that history will have to judge. In the meantime, Greenburg's window into the genesis of the current Supreme Court, shaped dramatically by the Bush administration, is the sort of rich, balanced account that will add immeasurably to the historical record.