The Nine [144]
Gathered in the East Room on May 9, 2001, the eleven nominees “looked like America,” as the Clinton-era phrase had it. There were two African Americans, including Roger Gregory, whom Clinton himself made a recess appointment to the Fourth Circuit after Senator Jesse Helms blocked a full-fledged appointment, and Barrington Parker Jr., a Clinton appointee to the district court whom Bush was promoting to the Second Circuit. There were also three women—Edith Brown Clement, Deborah Cook, and Priscilla Owen—and a Hispanic, Miguel Estrada, a brilliant Honduran immigrant who was tapped for the D.C. Circuit. “A president has few greater responsibilities than that of nominating men and women to the courts of the United States,” Bush said. “He owes it to the Constitution and to the country to choose with care. I have done so.”
Two weeks later, however, Senator James Jeffords, a Vermont Republican, created a political upheaval by shifting his alliance to the Democratic Party, thus transferring control of the evenly divided body away from the GOP. Suddenly, less than a year into Bush’s presidency, the Democrats were running the agenda in the Senate. As far as Bush’s judicial nominations were concerned, the change meant that Patrick Leahy, a committed liberal, also from Vermont, would take over from Orrin Hatch, the Utah conservative, as chairman of the Judiciary Committee. Under Hatch, all eleven of Bush’s nominees could have been assured prompt hearings and all but certain confirmation. But Leahy decided to slow down the process, especially for some of the more controversial nominees, including Owen and Estrada.
A justice of the Texas Supreme Court, Owen had staked out a position on the far right that had sometimes put her in conflict with Alberto Gonzales himself. Estrada had glittering credentials—Harvard Law School, followed by an acclaimed career as a federal prosecutor, an assistant to the solicitor general, and a top corporate lawyer—but he also had a prickly personality and a reluctance to share many of his views about constitutional law with the committee. Because Estrada was tapped for the august D.C. Circuit, where he would be a likely choice as first Hispanic on the Supreme Court, Democrats let his nomination linger in limbo.
In short, after the Democratic takeover of the Senate, the atmosphere around Bush’s judicial nominations soured. Republicans, especially those in the White House, thought their gestures of goodwill, like the nominations of Gregory and Parker, had counted for nothing. Democrats thought Bush, with just a few exceptions, was choosing conservative extremists. Positions hardened on both sides. Owen’s nomination was stalled for years. After a similar delay, Estrada withdrew his name in frustration. Others on Bush’s original list of eleven nominees eventually did win confirmation, including the president’s choice to fill another vacancy on the D.C. Circuit, John G. Roberts Jr.
John Roberts was not genetically engineered to be a justice of the Supreme Court, but it often seemed that way. His career trajectory was so smooth, his progress so steady, his reputation so exalted, his personality so winning, that he seemed at times preternaturally favored for that ultimate destination.
Roberts was born in Buffalo on January 27, 1955, and raised in Indiana, where his father was an executive in the steel industry. Young John was captain of his high school football team and the best student in his high school class. In 1976, he graduated from Harvard College summa cum laude; three years later, he received his degree magna cum laude from Harvard Law School, where he was managing editor of the Law Review. His colleagues on the Review included Justice Ginsburg’s daughter, Jane. Both the college and the law school still bore the scars of the politically tumultuous 1960s, but Roberts managed to excel without making enemies, a skill that would serve him well. His first judicial clerkship was with Henry J. Friendly, a legendary judge on the Second Circuit whose chambers in New