Rove on Supreme Court interviews

CNN is reporting that President Trump will select his nominee to the Supreme Court by July 9. Accordingly, over the course of the next 10 days, a handful of candidates will undergo the enormously stressful experience of high-stakes White House interviews.

In his autobiography, Courage and Consequence: My Life as a Conservative in the Fight, former presidential adviser Karl Rove revealed the confidential interview process that led to the 2005 nominations of John Roberts and Samuel Alito. Rove’s book provides a unique and valuable perspective into how the Bush administration approached the selection process. I suspect the Trump White House’s approach will be quite similar.

The Roberts Nomination

When Justice Sandra Day O’Connor retired in July 2005, the Bush White House identified 11 serious candidates, each of whom interviewed at least once and sometimes twice with a small group of top presidential advisers, including the Vice President, the Attorney General, the White House counsel, the chief of staff, and the president’s senior most political adviser (i.e. Rove himself). A small number of finalists then interviewed directly with President Bush. The lawyers in the vetting group asked the candidates about case law and judicial philosophies, a line of questioning that Rove (a nonlawyer) viewed as “legal mumbo jumbo.” For his part, Rove asked pointed political and historical questions, such as “When did you first know you were a conservative?” and “Which former Supreme Court justice do you most admire?”

One of the surprising revelations in Rove’s book is that John Roberts did not do nearly as well as expected in his initial White House interview. According to Rove, Roberts came across as excessively “restrained and guarded.” But Roberts interviewed early in the process, and as the vetting group interviewed other candidates, Roberts “fared well by comparison.”

The choice ultimately boiled down to Roberts and 4th Circuit Judge Mike Luttig. Personality was the deciding factor. According to Rove, there was no doubt that Luttig was “highly intelligent,” but “[t]here was arrogance in his answers, a whiff that he was entitled to the post.” In contrast, Roberts’s “intelligence, precision, and demeanor” impressed Bush and Rove so much that they concluded he would be a natural “leader on the Court.” Roberts went on to perform exceptionally well before the Senate Judiciary Committee during his televised confirmation hearing. The Senate, which Republicans held 55-45, confirmed him by a 78-22 vote.

The Miers Debacle

When Chief Justice Rehnquist’s death in September 2005 created a second opening on the Court, Bush nominated White House Counsel Harriet Miers. According to Rove, Bush chose Miers because of her conservative politics, her work ethic, her personality, and her long experience as a commercial litigator in private practice. Bush was also influenced by private assurances from Senate Democratic leaders that Miers would receive broad bipartisan support.

Amazingly, however, the White House failed to vet Miers’s nomination with key conservatives, a reflection of the chronically poor planning that plagued Bush’s presidency during the Iraq War, Hurricane Katrina, and the failed effort to persuade the GOP-controlled Congress to privatize Social Security and reform immigration policy. Conservative opposition to Miers proved so intense that she ultimately withdrew her candidacy. With good reason, Rove blamed himself for failing to anticipate the conservative opposition. In retrospect, he concluded that four things doomed her nomination:

• She was not “active in the Federalist Society,”
• She had no federal judicial experience, and thus no track record to reassure conservatives of her judicial philosophy,
• She did not go to an Ivy League law school, and
• She lacked social connections to “Washington’s conservative legal circles.”

The Bush White House would not make the same mistake again.

The Alito Nomination

Ironically, the candidate who ultimately replaced Miers—3rd Circuit Judge Samuel Alito—got off to a terrible start during his initial interview. According to Rove, Alito was “painfully shy” and anxiety ridden. As Rove explained:

“The poor man was shaking when he came into the dining room at the vice president’s residence. There was nothing we could do to put him at ease. He just sat there twitching, sweating, and visibly distraught.”

Impressively, however, the power of Alito’s intellect shone through so clearly it overcame all of Rove’s reservations about the judge’s highly introverted personality. As Rove put it:

“But boy, was he smart. Judge Alito’s answers demonstrated he had a brilliant mind and deep legal wisdom. He was so good at explaining his views that even a nonlawyer like me understood what he was saying without feeling talked down to.”

The Senate ultimately confirmed Alito by a vote of 58-42. Rove concluded that “Roberts and Alito’s ascension to the Supreme Court counts among Bush’s greatest and most lasting domestic legacies.”

In a sign of things to come, only 4 Democratic senators voted for Alito: Kent Conrad of North Dakota, Tim Johnson of South Dakota, Ben Nelson of Nebraska, and Robert Byrd of West Virginia. Tellingly, all four came from red states. 

Senators on the Hot Seat

History may well repeat itself in 2018.

The politically-precarious position of three current Democratic senators—Joe Manchin of West Virginia, Heidi Heitkamp of North Dakota, and Joe Donnelly of Indiana— will make it exceedingly difficult for them to vote against President Trump’s nominee to replace Justice Kennedy. All three senators face tough reelection bids in deeply red states that Trump won by landslide margins in 2016. Not coincidentally, all three broke ranks with the Democratic Party and voted to confirm Neil Gorsuch in 2017. Whichever side they come down on in 2018, it will not be an easy vote for them. This time around Manchin, Heitkamp, and Donnelly are under intense pressure to stand with their party by voting against the president’s nominee. The beleaguered Democratic senators must therefore decide between political self-preservation at home and loyalty to the national party in Washington. 

On the other end of the spectrum, the pro-choice Republican senators Susan Collins and Lisa Murkowski also face immense political pressure to stick by their party, even though the nominee could one day cast the deciding vote to overturn Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey. In a sign of how important every vote is in the 51-49 GOP-controlled Senate, Collins and Murkowski met with President Trump last night to discuss the pending nomination. 

Thus, while a handful of Supreme Court aspirants will be on the hot seat for a little over a week, a number of senators will be on the hot seat for many months to come. 

[Correction: I originally wrote that only 3 Democratic senators voted to confirm Justice Alito, but a sharp-eyed reader pointed out to me that I failed to include the fourth Democratic Senator to vote for Alito, Sen. Robert Byrd of West Virginia. I have corrected the text above.]

Comments

[anon]

"chronically poor planning that plagued Bush’s presidency during ,..., Hurricane Katrina"

Another ultra liberal talking point, that you just take for granted as truth because you obviously haven't studied the facts. Look into the facts, especially involving the local and state leadership, Anthony.

"failed effort to persuade the GOP-controlled Congress ... reform immigration policy"

So, you think that any other president has been more successful? Do you think the Bush proposals were so terrible, given the performance of Congress since? Do you blame ONLY the GOP, here again? Did the previous administration fail to persuade a Democratic led Congress to reform immigration policy? Is there any limit to this mind set of yours?

"the nominee could one day cast the deciding vote to overturn Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey."

THis is straight out of the DNC talking points on this matter. Make it an issue of abortion, they say. True or not, no matter: this is deemed by the Democrats to be the ultimate rallying cry (it has been used over and over, basically to little or no effect).

These posts have much good in them: it is just too bad that these posts are sprinkled with Democratic Party talking points that are, shall we say, more often that not less than factual and simply asserted to "flavor" the piece for ultra liberal readers.

[Deep State Special Legal Counsel]

I give President Bush tremendous credit for eliminating the ABA's influence in the process. They are a trade group who gives out free stress balls at their convention. They can't reign in the sheer number of law schools and make it tough for thousands and thousands of under employed lawyers struggling with 6 figures of student loan debt.. Even in this economy.

By the way, it was the academics who took down Harriet Miers. Google Harriet Miers and University of Chicago. It is this elite talk that brought us to where we are today. Never tell people they are bad. Good thing I didn't study under this professor.

[anymouse]

Deep State, I rarely agree with you but this post is gold.

[Anon]

4 Democrats voted for Alito. You missed Robert Byrd. He even gave a speech where he condemned the way the hearing were conducted and the personal attacks on Alito.

[Anthony Gaughan]

Anon,

Thanks so much for that great catch. You are absolutely right. Four Democrats did vote for Alito (Senator Chafee of Rhode Island was the one Republican who voted against Alito's confirmation). I will correct the text above. Thanks again! I appreciate it.