Dwight Eisenhower was asked to name his biggest mistakes as president, he answered, “I made two and they’re both sitting on the Supreme Court.”
Shortly after the 2000 election was decided, I asked my White House counsel, Alberto Gonzales, and his team of lawyers to develop a list of candidates for the Supreme Court. Al was an impressive second-generation American who had worked his way through Rice University and Harvard Law School and earned my trust when I was governor. I told him the Supreme Court list should include women, minorities, and people with no previous experience on the bench. I made clear there should be no political litmus test. The only tests in my mind were personal integrity, intellectual ability, and judicial restraint. I was concerned about activist judges who substituted their personal preferences for the text of the law. I subscribed to the strict constructionist school: I wanted judges who believed the Constitution meant what it said.
With Al Gonzales.
For more than eleven years, the same nine justices had sat together on the Court, the longest such streak in modern history. On June 30, 2005, Harriet Miers—who had replaced Al Gonzales as White House counsel when he became attorney general—was informed that the Supreme Court would be forwarding a letter for me from one of the justices. We all assumed it was from Chief Justice William Rehnquist, who was eighty years old and sick. But the next morning Harriet called me with a surprise. “It’s O’Connor,” she said.
I had met Justice Sandra Day O’Connor many times over the years. The first female justice in the history of the Court, she had an engaging, straightforward personality. I was fond of Sandra and called her immediately after I received her letter. She told me it was time for her to go take care of her beloved husband, John, who was suffering from Alzheimer’s.
While the vacancy was not the one I expected, we were prepared to fill it. Harriet’s team prepared a thick binder that contained the biographies of eleven candidates, as well as detailed analyses of their writings, speeches, and judicial philosophies. I had a trip to Europe scheduled in early July, and the long hours on Air Force One made for good reading time. After studying the binder, I narrowed the list down to five impressive judges: Samuel Alito, Edith Brown Clement, Michael Luttig, John Roberts, and J. Harvie Wilkinson.
Each came to meet me in the White House residence. I tried to put them at ease by giving them a tour of the living area. Then I took them to the family sitting room that overlooks the West Wing. I had read the summaries of their legal opinions; now I wanted to read the people. I was looking for someone who shared my judicial philosophy, and whose values wouldn’t change over time. I went into the interviews hoping one person would stand apart.
One did. John Roberts flew in from London, where he was teaching for the summer. I knew Roberts’s record: top of his class at Harvard and Harvard Law School, law clerk to Justice Rehnquist, dozens of cases argued before the Supreme Court. Roberts had been nominated to the D.C. Circuit Court of Appeals in 1992, but he wasn’t confirmed before the election. I had nominated him to a seat on the same court in 2001. He was confirmed in 2003 and had established a solid record. Behind the sparkling resume was a genuine man with a gentle soul. He had a quick smile and spoke with passion about the two young children he and his wife, Jane, had adopted. His command of the law was obvious, as was his character.
Having coffee with John Roberts in the West Wing Sitting Hall the morning after his nomination.
I talked about the decision with Dick, Harriet, Andy, Al, and Karl. They liked Roberts, but he was not at the top of all lists. Dick and Al backed Luttig, who they felt was the most dedicated conservative jurist. Harriet supported Alito because he had the most established judicial record. Andy and Karl shared my inclination toward Roberts. I solicited opinions from others, including some of the younger lawyers in the White House. One was Brett Kavanaugh, whom I had nominated to the D.C. Circuit Court of Appeals. Brett told me that Luttig, Alito, and Roberts would all be solid justices. The tiebreaker question, he suggested, was which man would be the most effective leader on the Court—the most capable of convincing his colleagues through persuasion and strategic thinking.
I believed Roberts would be a natural leader. I didn’t worry about him drifting away from his principles over time. He described his philosophy of judicial modesty with a baseball analogy that stuck with me: “A good judge is like an umpire—and no umpire thinks he is the most important person on the field.”
On Tuesday, July 19, I called John to offer him the job. We made the announcement that night in the East Room. Everything went according to plan until, during my primetime televised speech, four-year-old Jack Roberts slipped out of his mother’s grip and started dancing around the floor. We later learned he was imitating Spider-Man. I saw him out of the corner of my eye, and it took all my concentration to continue my remarks. Eventually Jane reclaimed little Jack. The audience had a good laugh, and Jack’s family got slide-show material for life.
In early September, three days before Roberts’s confirmation hearing was scheduled to begin, Karl called me late on a Saturday night. Laura and I were in bed, and nobody calls with good news at that hour. Karl told me the chief justice had just died. Rehnquist was one of the greats. He had served thirty-three years on the Supreme Court, nineteen of them in the center chair. He had conducted Dad’s swearing-in as president in 1989 and mine in 2001. As my Second Inauguration approached, Rehnquist was ailing with thyroid cancer. He hadn’t been seen in public for weeks. But when it came time to read the oath of office, his voice boomed loud and clear: “Repeat after me: I, George Walker Bush, do solemnly swear …”
I now had two vacancies on the Court to fill. I decided that John Roberts’s leadership ability made him a perfect fit for chief justice. John excelled at his hearing, was confirmed by a wide majority, and came back to the East Room for his swearing-in. The moment showed what unlikely turns life can take. John Roberts, who thirteen years earlier assumed that his chance to be a judge had passed, was now chief justice of the United States.
With O’Connor’s seat still vacant, I felt strongly that I should replace her with a woman. I didn’t like the idea of the Supreme Court having only one woman, Justice Ruth Bader Ginsburg. Laura agreed—and shared her views with the press.
This was a rare occasion when Laura’s advice spilled out into the public, but far from the only time I relied on her thoughtful counsel. Laura had an instinctive feel for the pulse of the country. She wasn’t involved in every issue, and she didn’t want to be. She picked areas that appealed to her—including education, women’s health, rebuilding the Gulf Coast after Katrina, AIDS and malaria, and freedom in Burma and Afghanistan.
I instructed Harriet and the search committee to draw up a new list with more women. The candidates she found were impressive. But there were frustrating roadblocks. When I asked for a more thorough vetting of one well-qualified woman judge, it turned out that her husband had a financial problem that would jeopardize her confirmation. A top choice on the list was Priscilla Owen, a former justice on the Texas Supreme Court. Priscilla was one of the first people I nominated for a federal appeals court position in 2001. Unfortunately, Democrats made her a target. She was finally confirmed in the spring of 2005 as part of a bipartisan compromise. I thought she would make a fine member of the Supreme Court. But a number of senators, including Republicans, told me the fight would be bloody and ultimately she would not be confirmed.
Two other messages came from our consultations on Capitol Hill. The first was that I should think about picking a lawyer from outside the bench. The second was that I seriously consider my White House counsel, Harriet Miers. Several senators had been very impressed by Harriet as she shepherded John Roberts through his interviews on Capitol Hill.
I liked the idea of nominating Harriet. She had been a legal pioneer in Texas—the first woman president of a major Texas law firm, the Dallas Bar Association, and the State Bar of Texas. She had been elected to the Dallas City Council, directed the Texas Lottery Commission, and served nearly five years in top White House positions. There was no doubt in my mind that she shared my judicial philosophy and that her outlook would not change. She would make an outstanding justice.
With Harriet Miers in the Oval Office.
I asked Harriet if she had any interest in the job. She was surprised—more like shocked—but she said she would serve if I asked. I raised the idea with other members of the search group. Harriet’s colleagues loved and respected her, and some thought she would be a good choice. Others argued that it was too risky to pick someone with no established record on the bench, or that we would be accused of cronyism. Several told me bluntly that she was not the right choice. None told me to expect the firestorm of criticism we received from our supporters.
The decision came down to Harriet and Priscilla Owen. I decided to go with Harriet. I knew her better. I
