The Nine [152]
Still, Luttig was the conservative’s dream choice—probably smarter than his mentor Scalia, twenty years younger, and very likely more conservative. He had been a hero to the movement since 1991, when as a Justice Department official he had steered Thomas through his agonizing confirmation hearings. Luttig’s long history of writing conservative judicial opinions made him the opposite of a stealth nominee; he was a guarantee. Much more than Roberts, Luttig had paid his dues to the cause.
Luttig had one important ally on the White House staff—who was also a Roberts skeptic, if not an outright detractor. Harriet Miers had been White House counsel for only a few months, replacing Gonzales when he was named attorney general. She did not come out of the Washington legal establishment that seemed so enamored of John Roberts. All she heard about Roberts was…Trust us, trust us, he’s a real conservative. But that wasn’t enough for Miers. She was a lawyer who believed in facts, not opinions. Her favorite candidate was Sam Alito, who had written dozens of judicial opinions that left no doubt in Miers’s mind that he belonged on the Supreme Court. As for Roberts, Miers wanted the same level of proof that he was a Bush conservative.
Miers was so skeptical of Roberts that she summoned Leonard Leo, the executive vice president of the Federalist Society, to make the case for him. Leo, along with Boyden Gray, Jay Sekulow, and Ed Meese, served as the principal emissaries between the White House and the conservative movement on Supreme Court nominations. Even among that quartet, Leo was known as the monitor of the various nominees’ ideological purity. Miers wanted Leo to convince her that Roberts was a true conservative. Leo assembled a selection of Roberts’s writings from the Reagan White House and his decisions from the D.C. Circuit and walked Miers through them, but she still had her doubts. “Well,” Miers said, signaling the direction the search was going, “I hope you’re right.”
Miers had worked in the White House, largely in obscurity, throughout the first term. She came to Washington from her law practice in Dallas to be Bush’s staff secretary, an important but largely ministerial job that involves controlling the paper flow in and out of the Oval Office. The job suited her meticulous temperament and deep loyalty to Bush. The only substantive responsibility was examining the recommendations that came to the president and determining whether they comported with his ideology and record. To do her job, Miers felt she almost had to know Bush so well that she had, in essence, to become him.
No one was better suited to this self-denying task than Miers. For one thing, no one worked harder. Her red Mercedes (with Bush bumper stickers going back to his gubernatorial races) was often the first one in the White House parking lot in the morning and the last one out at night. After two years as staff secretary, she moved on to be deputy chief of staff for policy, another job where she had to test initiatives from the cabinet departments for their loyalty to the Bush program. Miers had few known views of her own but a fierce allegiance to the president, both personally and politically. Her question about John Roberts was: What has he ever done to pay his dues to the cause?
Dick Cheney had similar questions. The vice president was the only figure in the White House who was touting Scalia as a possible replacement for Rehnquist, whose departure seemed imminent. As became clear in their duck-hunting expedition, Cheney and Scalia had been friends since the Ford years. (The lawyers on the White House staff regarded a possible Scalia promotion as an unnecessary additional confirmation fight for a man who, at age sixty-nine, probably would not serve for very