The Nine [153]
Their doubts may have been overcome in any case, but then a fortuitous coincidence sealed Roberts’s nomination. On July 15, 2005, the day of his interview with Bush, the D.C. Circuit upheld the administration’s plans for the use of military tribunals for the prisoners held at the navy base at Guantánamo Bay, Cuba. In 2004, of course, O’Connor’s scathing rebuke to the administration in the Hamdi case had mandated that the detainees receive some sort of due process of law. In Hamdan v. Rumsfeld, Roberts joined a three-judge panel that approved the Bush plan that had been developed in response to O’Connor’s scolding. In that case, it was clear that the administration’s procedures did not comport with the Geneva Conventions, which required that all prisoners receive trials “by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” But Roberts and his colleagues said the Bush administration did not have to comply with the international treaty, because the “Geneva Convention cannot be judicially enforced.”
No issue mattered more to Cheney (and to Bush and, thus, to Miers) than preserving the power of the president, especially with regard to what the president called the global war on terror. International obligations, and especially the Geneva Conventions, drew sneers in this White House. The vice president believed that since the Nixon years the executive branch had steadily ceded authority to Congress, the courts, and even international institutions, and he made it his mission to arrest that decline. (It was the principle at issue in the energy task force/duck-hunting case in the Supreme Court.) As important as abortion was to the outside conservative groups, the issue of executive power—and stopping the meddling of liberal judges—was to Cheney. With Hamdan, Roberts had proved himself worthy. Cheney and Miers were on board.
The next Monday, Roberts was told to return from London once more; Bush’s decision was near. The following morning, Tuesday, July 19, rumors swept Washington that the choice would be Clement, who had met with Bush over lunch on Saturday. (Sekulow, who fancied himself a White House insider but was merely a useful instrument to those in power, spent the morning saying Clement was a done deal.) In fact, at 12:35, Bush left a meeting with the Australian prime minister to call Roberts and offer him the job. Roberts’s wife and two children joined him and the president at the White House for dinner at 7:00, and at 9:00, in the East Room, on live television, Bush introduced Roberts to the nation. The contrast with the last announcement of a Supreme Court nominee was stark. In 1994, during the news graveyard of Friday afternoon, Clinton had made a rushed and grumpy disclosure of Breyer’s name, without even having the nominee by his side. Bush was showcasing Roberts in prime time.
With his two children scampering nearby, his son, Jack, in short pants acting out Spider-Man moves, Roberts spoke as the best Supreme Court advocates always do—without notes. “Thank you, Mr. President,” he said. “Thank you very much. It is both an honor and very humbling to be nominated to serve on the Supreme Court. Before I became a judge, my law practice consisted largely of arguing cases before the Court. That experience left me with a profound appreciation for the role of the Court in our constitutional democracy and a deep regard for the Court as an institution. I always got a lump in my throat whenever I walked up those marble steps to argue a case before the Court, and I don’t think it was just from the nerves. I am very grateful for the confidence the president has shown in nominating me, and I look forward to the next step in the process before the United States Senate.” He concluded by thanking his family and acknowledging his children, “who remind me