The Nine [142]
Only a few days after the 2000 election was resolved, Bush announced that he would be taking Alberto Gonzales, formerly his chief counsel in Austin, with him to Washington as White House counsel. Gonzales, whom Bush had recently placed on the Texas Supreme Court, chose just one of his local deputies, Stuart Bowen, to go with him. For the remainder of the White House legal staff—the people who would select and vet the candidates for the Supreme Court and other judgeships—the two Texans tapped into the conservative network that had been created two decades earlier for just this opportunity. Conservatives may have represented a lonely minority on law school campuses in the 1980s, but by the new century they constituted a powerful force in Washington. Nothing mattered more to them than taking control of the federal judiciary, especially the Supreme Court.
The young lawyers on the White House staff had a great deal in common. Virtually all of them were members of the Federalist Society. Many had worked on the various Republican investigations of the Clinton administration during the previous eight years. (Brett M. Kavanaugh was the principal author of the Starr report, Christopher Bartolomucci was an investigator in Senator Alfonse D’Amato’s investigation of Whitewater, and Bradford Berenson became a familiar media commentator on the investigations.) Several others, like Bowen himself and Timothy Flanigan, who ultimately became Gonzales’s deputy, joined up after working for Bush on the recount litigation in Florida. Most had clerked for conservative justices on the Court. (Kennedy clerks like Kavanaugh and Berenson predominated, because the justice tended to hire law clerks who were more conservative than he was.)
Before the inauguration, the early arrivals on the staff—like Kavanaugh, Berenson, and Helgi Walker, a former Thomas clerk—established themselves in office space reserved for the transition in a downtown Washington building. Among their first assignments was to write what were called “candidate memos”—that is, profiles of prospective appointees to the Court. Nearly fifty, Flanigan was the oldest of the lawyers on the staff and the only one who had served in the first Bush administration, as a high-ranking Justice Department official. He had a basic familiarity with the well-known Republican appointees to the courts of appeals, so he farmed out the writing of about a dozen of the profiles to the junior lawyers. Without contacting the candidates and working only from material in the public domain, they set out to analyze the judges’ suitability for the Court and their chances for confirmation. Some of the memos ran to almost a hundred pages. Their subjects became known as the “short list.”
After Bush took office in January 2001, the counsel’s operation moved to the Old Executive Office Building, next door to the White House. The lawyers soon turned their attention to the end of the Court’s term in June, a traditional time for justices to announce their retirement; an annual office pool on resignations was set up, with the winner awarded dinner at the AV Ristorante, a run-down Italian restaurant that served as an unofficial clubhouse for conservative lawyers in Washington. (The place was a favorite of Scalia’s until it closed in 2007.) Each year, throughout Bush’s first term, the betting focused on Rehnquist and O’Connor, but the killjoys who chose no resignations always wound up with the free pizza.
As the years passed without an opening on the Court, the lawyers rotated to other jobs, but one thing rarely changed—the short list. What was especially striking about the list was that it was compiled with little involvement from Gonzales—and none at all from Bush. The president had essentially delegated the matter of Supreme Court appointments to Gonzales, and he turned it over to his young aides. Bush, of course, would make any