In his new book "Decision Points," former President George W. Bush offers some fascinating tidbits about what could be his most lasting legacy: the nominations of Chief Justice John Roberts and Justice Samuel Alito to the Supreme Court.
Along the way, he also takes time to sling a few arrows at conservatives who opposed his choice of White House Counsel Harriet Miers to replace Justice Sandra Day O'Connor. Conservatives, he says, were condescending (he refers specifically to a quote from Ann Coulter) and elitist in their opposition to Miers, and he's clearly still peeved by the revolt that led to her withdrawal. In fact, that's why he regrets nominating her.
"While I know Harriet would have made a fine justice, I didn't think enough about how the selection would be perceived by others," Mr. Bush writes. "I put my friend in an impossible situation. If I had to do it over again, I would not have thrown Harriet to the wolves of Washington."
Five years later, it's almost hard to believe the unlikely sequence of events that led to Roberts and Alito joining the Supreme Court. Remember that Mr. Bush first tapped Roberts to replace O'Connor after her surprise resignation. About six weeks later, when Chief Justice William Rehnquist died, Mr. Bush asked Roberts to fill that spot instead. Mr. Bush then turned to Miers to replace O'Connor. And when Miers was forced to withdraw her nomination, Mr. Bush finally tapped Alito.
Some of what Mr. Bush writes we already knew, like the names of the five judges he personally interviewed in the White House. But there are new details, including this one: Federal appeals court Judge Priscilla Owen was the other top contender before Mr. Bush decided to nominate Miers.
Mr. Bush writes that he was determined to nominate a woman to replace O'Connor, and says he narrowed it down to Miers and Owen. But he concluded Owen, who was filibustered when he nominated her to the appeals court, would have trouble getting confirmed. With some Democrats suggesting Miers, Mr. Bush picked her instead--over objections from several advisers in the White House.
(At left, Jan Crawford and CBS News' Jim Axelrod discuss "Decision Points")
What that shows is just how close Sam Alito came to never being Justice Alito. If Mr. Bush had opted for the fight over Owen, she probably would have been confirmed, and she would be on the Supreme Court today instead of Alito. Instead he tapped Miers, watched her nomination go up in flames, and then turned to the sure bet in Alito.
After Alito's swearing in, Mr. Bush describes how he invited him and his family to the White House, where he thanked him for "enduring the hearings." He told Alito: "Sam, you ought to thank Harriet Miers for making this possible." Alito responded: "Mr. President, you're exactly right."
In the book, Mr. Bush gives other details about the selection process, including:
--He knew his father was "disappointed" at how David Souter had "evolved into a different kind of judge than he expected." Mr. Bush wanted a justice who would remain solidly conservative.
--He believed John Roberts stood apart from the other four candidates he initially interviewed to replace Justice Sandra Day O'Connor because of his "sparkling resume" and because he was "a genuine man with a gentle soul." Mr. Bush says Roberts "had a quick smile and spoke with passion" about his two children. "His command of the law was obvious, as was his character."
--Roberts was not the unanimous choice. Vice President Cheney and Attorney General Alberto Gonzales backed Judge Mike Luttig. Miers supported Alito. Chief of Staff Andy Card and adviser Karl Rove favored Roberts. (Which means J. Harvie Wilkinson and Edith Brown Clement, the other two contenders early on, didn't have prominent backers.)
--Brett Kavanaugh, now a federal appeals court judge, told Bush Luttig, Alito and Roberts would all be solid justices. He suggested Bush ask a "tiebreaker question" of which man would be the most effective leader. To Bush, that was Roberts.
--Mr. Bush was distracted when he introduced his new nominee to the nation because Roberts' young son "slipped out of his mother's grip and started dancing around the floor." No one knew Jack Roberts was imitating Spider Man. "I saw him out of the corner of my eye, and it took all my concentration to continue my remarks," Mr. Bush writes.
--After he tapped Roberts for chief justice when William Rehnquist died, he only considered women candidates to replace O'Connor. "I didn't like the idea of the Supreme Court having only one woman."
--There were "frustrating roadblocks" for most of the women candidates. When several senators said they were impressed by Miers, he concluded "she would make an outstanding justice." Miers was "shocked" when he asked if she was interested.
--No one in the White House ever suggested conservatives would revolt over her nomination. Bush suggests the opposition was elitist because Miers didn't go to an Ivy League school and "is not glib."
--After the failed Miers nomination, he turned to Alito because he could not find any women who were as qualified.
--Alito was "ill at ease" at first in his interview with Mr. Bush, so Mr. Bush "tried the old common-ground icebreaker--in this case, baseball." As they talked, "his body language changed. He opened up a little about his life and the law."
I've reported that Mr. Bush was engaged in the selection process, and that he cared deeply about getting his nominations right because he was acutely aware of how his father had failed with Souter. His book makes that clear--and also makes clear Mr. Bush he believes he succeeded.
Indeed, Souter's liberal leanings began to emerge in his second year on the Court. But Roberts and Alito have proven to be the solid judicial conservatives Mr. Bush was seeking--and found.
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