The Nine [141]
Three days later, however, around lunchtime on Thursday, Pamela Talkin, the marshal of the Court, called Harriet E. Miers, the White House counsel, to arrange for hand delivery of a letter the following morning. (Miers had recently been promoted from deputy chief of staff to succeed Alberto Gonzales as White House counsel.) Talkin did not say which justice would be sending it. The next morning, Friday, July 1, just before nine, Talkin called Miers and said the letter, which was from O’Connor, was on its way.
The news of O’Connor’s resignation hit official Washington like thunder. The expected replacement of Rehnquist would have been momentous—there had, after all, been forty-three presidents but only sixteen chief justices. But a Bush appointee in that seat would not change the balance of power on the Court in any dramatic way. The loss of O’Connor, in contrast, would. The conservative counterrevolution, thwarted for so long, often by O’Connor herself, might finally have a chance to succeed.
Few people paid attention to the text of the letter that had been delivered to the president, but O’Connor had crafted the message with care:
Dear President Bush,
This is to inform you of my decision to retire,…effective upon the nomination and confirmation of my successor. It has been a great privilege, indeed, to have served as a member of the court for 24 Terms. I will leave it with enormous respect for the integrity of the court and its role under our constitutional structure.
Sincerely,
Sandra Day O’Connor
It was, in O’Connor’s polite way, a direct shot at Bush and a plea for the cause that obsessed her in her final days on the bench. She was determined to protect the Court’s “role under our constitutional structure” precisely against the incursions that she thought Bush and his allies were attempting to make.
But few people noticed. O’Connor discovered quickly that retirement brought fulsome tributes but also immediate irrelevance. One moment she was the swing vote on the Supreme Court and the next, it seemed, she was a display piece in a museum. She had lost her job, and the political party that was her home had lost her. Worst of all, she was losing her husband. In those first days after her announcement, she didn’t answer the phone too often. She sat in her office and cried.
PART
FOUR
20
“‘G’ IS FOR GOD”
The planning for this moment—the opportunity for George W. Bush to nominate a justice to the Supreme Court—had begun shortly after Election Day in 2000. At the time, with Florida still undecided, it was not even clear that Bush would become president, but his team wanted to be ready with a nominee as soon as there was a vacancy. The transformation of the Court would be a central priority of the new administration, if Bush had the chance.
When he began his campaign for president, Bush did not devote a great deal of attention to the subject of the Court. As governor of Texas, he appointed judges with backgrounds much like his own; they were conservatives, but mostly in the corporate rather than the social and evangelical wing of the Republican Party. During the 2000 campaign, Bush sent signals that he would operate much the same way in the White House. In a debate with Al Gore, he was asked whether voters should assume all his judicial appointments would be prolife. “Voters should assume that I have no litmus test on that issue or any other issue,” Bush replied blandly. “The voters will know I’ll put competent judges on the bench.”
But five years later, when Bush finally had the chance to make an appointment to the Court, he had a very different agenda for his nominees. Inside the White House, “moderation” had gone from a goal to an epithet. The messianic nature of his presidency—Bush’s conception of his time in office as a moment of dramatic change for the world—affected his judicial nominations as much as it did his decisions on the Middle East. Through a combination of the staff he selected, the political