First Impressions Matter
George W. Bush's selection of John Roberts is a model of good process
In sharp contrast with the extraordinary dithering and disorder that marked Bill Clinton’s decision-making on his two Supreme Court nominations, George W. Bush’s selection of John G. Roberts Jr. to fill Justice O’Connor’s vacancy provides a model of how to do the process well.
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As I’ve discussed more fully, the Bush White House was very ready for a vacancy when Justice O’Connor informed the president on July 1, 2005 that she had decided to retire. Some months earlier, Bush’s team of senior advisers had already interviewed leading candidates for the next nomination. Not a word about those interviews had leaked.
As Bush recounts in his memoir Decision Points, the White House Counsel’s office promptly presented him “a thick binder that contained the biographies of eleven candidates, as well as detailed analysis of their writings, speeches, and judicial philosophies.” After reviewing those materials, Bush interviewed five federal appellate judges: Samuel Alito, Edith Brown Clement, Michael Luttig, John Roberts, and J. Harvie Wilkinson.
Bush demanded strict secrecy about the interviews. To avoid attention, candidates were escorted onto the White House grounds in private cars. Only White House counsel Harriet Miers joined Bush for the interviews.
Bush was “hoping one person would stand apart” from the others. And for him “one did”: Roberts. But while everyone on his senior team was high on Roberts, he wasn’t everyone’s top pick:
[Vice President] Dick [Cheney] and [Attorney General] Al [Gonzales] backed Luttig, who they felt was the most dedicated conservative jurist. Harriet supported Alito because he had the most established judicial record. [White House chief of staff] Andy [Card] and [deputy chief of staff] Karl [Rove] shared my inclination towards Roberts.
Bush also consulted “some of the younger lawyers in the White House,” including Brett Kavanaugh, who had moved from the White House counsel’s office to the influential position of staff secretary:
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.
For Bush, that tiebreaker reinforced his preference for Roberts, who he believed “would be a natural leader.” It didn’t help Luttig that his interview with Bush had gone poorly and that he had acquired a reputation for pugnacity, including with his conservative colleagues. Alito’s interview had gone much better, but his quiet demeanor—”as reserved as they come,” in Bush’s words—contrasted with Roberts’s geniality.
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The White House consulted extensively with senators of both parties—more than seventy in total. Bush himself had a meeting on July 12 with majority leader Bill Frist, minority leader Harry Reid, Judiciary committee chairman Arlen Specter, and the senior Democrat on the committee, Pat Leahy, to solicit their thoughts. But Bush was careful not to disclose which candidates were high on his list.
Indeed, here’s one striking measure of how tight-lipped the White House was: It was on the evening of July 18, after Bush had decided to select Roberts and just a day before his public announcement, that Miers met with Specter to invite his review of a list of fifteen candidates supposedly under consideration. (It’s amusing that in his memoir Specter doesn’t observe that Bush had already picked Roberts and instead takes pride in being “the only senator consulted by the White House on a list of fifteen prospective nominees.”)
Bush held the process so tight that even the White House lawyers (other than Miers and her deputy Bill Kelley) didn’t learn that Bush had picked Roberts until about an hour before the news broke on July 19.
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Making an early exit from a teaching gig in London, Roberts arrived back in D.C. on Tuesday, July 19, just in time to answer Bush’s telephone call offering him the nomination.
That evening, in a smartly presented eight-minute event that was nationally televised, Roberts joined Bush at the White House as Bush announced his nomination. Bush hailed Roberts’s superlative qualifications and character.
The national press immediately acknowledged Roberts’s “impeccable conservative credentials” (AP). By Thursday morning, the Washington Post was reporting that Senate Democrats had already “conceded” that his nomination “could be hard to defeat,” that they “seemed increasingly resigned to the notion that they cannot stop his appointment,” and that they “held out little prospect of a filibuster.”
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Clinton took 86 days to select Ruth Bader Ginsburg and, even after months of advance notice of Harry Blackmun’s retirement in 1994, more than five weeks from Blackmun’s public announcement to select Stephen Breyer. Both processes were plagued by leaks and public attacks on putative frontrunners. In an odd spectacle, Clinton announced his nomination of Breyer in Breyer’s absence, evidently because White House counsel Lloyd Cutler and other supporters of Breyer were eager for Clinton to lock himself in before he would find occasion to change his mind again.
Bush selected Roberts 18 days after O’Connor announced her retirement. The discipline and secrecy that the White House maintained enhanced the drama of Bush’s selection and deterred preemptive attacks on Roberts.
On Supreme Court nominations as on so much else in life, first impressions can matter a lot. Given his qualities and credentials, John Roberts was a safe bet to make a strong mark. George Bush’s highly competent decision process helped to maximize that very favorable first impression.