Preparing For Rehnquist's Resignation

Following re-election, George W. Bush White House gets ready

A president’s success in appointing a Supreme Court justice depends on many factors. As he began his second presidential term in 2005, one big advantage that George W. Bush had was that his White House was very ready for a vacancy.

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As president, Dwight Eisenhower observed that he had “two kinds of problems: the urgent and the important.” “The urgent,” he said (with some exaggeration), “are not important, and the important are never urgent.”

In any White House, it’s easy for the urgent—the pressing demands and deadlines of the day—to crowd out far more important matters like preparing for the possibility of a Supreme Court vacancy. In the ideal White House, a president would always have an updated working short list of Supreme Court candidates to interview if a vacancy suddenly arose. But the messy reality is that many White Houses are woefully unprepared.

As we have seen, Bill Clinton had the great gift of a Supreme Court vacancy just two months into his first term. Clinton had ample reason to expect a vacancy. But he and his White House were so disorganized and indecisive that it took him 86 days to select his nominee, and the tortuous process earned him widespread ridicule.

When Justice Antonin Scalia died unexpectedly in February 2016, Barack Obama and his White House team had had years to have a short list ready. The Republican takeover of the Senate a year earlier made it all the more important to be prepared in the unlikely event a vacancy arose. But Obama wasn’t ready, and he took more than a month to make his pick. Had he moved much more swiftly, he would have had a much better shot at preventing Senate Republicans from firmly coalescing around a commitment to keep the seat open through the November 2016 presidential election. As I will explain more fully down the road, it was much easier early on for many Senate Republicans to commit not to act on any nominee than it would have been to oppose a particular nominee.

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George W. Bush’s White House was far better organized than Clinton’s. From the very beginning in early 2001, a working group of senior officials—Vice President Dick Cheney, Attorney General John Ashcroft, White House chief of staff Andy Card, deputy chief of staff Karl Rove, and White House counsel Alberto Gonzales—began exploring possible Supreme Court nominees. Gonzales had his outstanding team of White House lawyers conduct exhaustive reviews of a dozen or more candidates and prepare extensive memos.

By Election Day in 2004, it seemed probable that whoever was elected president would have at least one Supreme Court vacancy to fill. In late October 2004, the news broke that Chief Justice William Rehnquist was hospitalized for thyroid cancer. Rehnquist, 80 years old, would miss oral arguments over the next four months, as he received radiation and chemotherapy treatment. In his memoir Courage and Consequence (a great read, by the way), Karl Rove recounts that Rehnquist “looked awful” at Bush’s inauguration in 2005 and that it appeared that “his days were numbered.”

Chief Justice William Rehnquist swears in President George W. Bush in 2005

Justice John Paul Stevens would turn 85 in 2005. Justice Sandra Day O’Connor was a decade younger than Stevens, but was rumored to be interested in stepping down.

The previous Supreme Court vacancy had occurred more than a decade earlier, in 1994, when Harry Blackmun resigned and Clinton appointed Stephen Breyer to his seat. In the entire history of the United States, there had been only one longer period between Supreme Court appointments, and indeed only one other period that was longer than six years—the twelve years between Joseph Story’s appointment in 1811 and Smith Thompson’s appointment in 1823.

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A recently released memo* from George W. Bush’s presidential library reveals that as early as two weeks after Election Day senior White House officials were brainstorming over Rehnquist’s anticipated resignation. President Bush “should not be afraid to nominate strong conservative,” Karl Rove’s memo reads; “if don’t, move court in wrong direction”—something that would not be true if Bush were replacing Stevens or O’Connor. The memo likewise states that there was “no obvious candidate on court”—to become Chief Justice, it’s clear—and that a decision to “move up a conservative SCOTUS [justice]” would “buy two fights” (one over the associate justice to be elevated to chief, one over the nominee to fill the vacated associate-justice position).

In the spring of 2005, the working group of senior officials (with Cheney’s chief of staff Scooter Libby acting for the veep, Gonzales in his new capacity as Attorney General, and Harriet Miers as White House counsel) conducted confidential interviews of a dozen or so candidates, including D.C. Circuit judge John Roberts, Third Circuit judge Samuel Alito, Fourth Circuit judges Michael Luttig and Harvie Wilkinson, and Fifth Circuit judge Edith Clement.

So the White House was very ready when the Supreme Court informed it on June 30 that the president would be receiving a letter the next day from one of the justices. But an unexpected twist occurred. As Bush writes (in Decision Points):

We all assumed it was from Chief Justice William Rehnquist, who was eighty years old and sick. But the next morning Harriet [Miers] called me with a surprise. “It’s O’Connor,” she said.

* The reporter who obtained the memo and shared it with me has asked me not to link to it until after he writes about it.