The Nine [143]
Gonzales and Flanigan provided minimal guidance. Bush wanted someone with judicial experience and a proven ideological track record. As was often the case in the Bush White House, the president was eager to avoid what he regarded as the mistakes of his predecessors. Bush didn’t want any Clinton-style agonizing or a long public search featuring abundant news leaks. When a vacancy came, the decision should be quick. Nor did Bush want a process like the one that led his father to nominate David Souter—where outsiders like Warren Rudman, then a New Hampshire senator, intervened at the last minute to push his protégé into the mix. That disorderly rush produced a nominee whose views turned out to be a surprise, at least to conservatives. George W. Bush didn’t want any surprises.
In public, the president invariably relied on the same catch-phrases when describing his favored judicial philosophy. “I believe in strict constructionists—judges who strictly interpret the Constitution and will not use the bench to write social policy,” he said. Or, as he put it on other occasions, he favored judges who would “interpret the law, not legislate from the bench.” Of course, all judges, even the most liberal, believe they are interpreting the law, so Bush’s summary really amounted to a coded reference to the outlines of a judicial philosophy. When Bush said judges were “legislating from the bench,” he meant overturning laws on individual-rights grounds, most notably restrictions on abortion rights. Bush was also talking about judges who prohibited public displays of religious observance. The president—and especially Vice President Cheney—also felt strongly that judges should not interfere with what they felt were the prerogatives of the executive branch in the conduct of foreign policy or military affairs.
As for a more detailed philosophy, like whether Bush supported the Constitution in Exile—and a return to a 1930s conception of the role of the federal government—no one really knew. During the 2000 campaign, Bush said in passing that he would look for judges in the mold of Scalia and Thomas, but he never repeated that promise, because downplaying it served his political purposes. The vow pleased his conservative base, but most voters ignored it. Still, the Scalia and Thomas remark ended up being the most important guidance the White House lawyers received. Unlike their boss, the young conservatives on Bush’s staff had thought through precisely what stamp they wanted to place on the federal judiciary—and a network of Scalia and Thomas acolytes was precisely what they had in mind.
The closest Bush came to spelling out what he wanted came every six weeks or so, when he met his judicial selection team, which usually included the vice president, Gonzales, and about a half dozen Justice Department and White House officials. Bush had a businessman’s contempt for lawyers generally, and he viewed the process of choosing judges with impatience. Like most other presidents in recent years, Bush deferred to senators of his party on the selection of trial court judgeships, and he always wanted to know what home-state Republicans thought of appeals court candidates as well. All he needed to know was that a judicial candidate was a “good conservative.” He rarely asked questions about candidates’ judicial philosophy and never gave any sign that he had read their judicial opinions.
But Bush did have another priority for his judges—diversity. Early in his presidency, when the political divisions in the country were not as toxic as they would become, Bush pressed for women and minorities on the bench. Given the ideological inclinations of the lawyers on his staff, it wasn’t the easiest assignment, but they did initially find a diverse group of judges to send to the Senate. In fact, the nomination of Bush’s first group of judges would be a little-noticed