The Nine [154]
Any doubts about Roberts’s confirmation, to the extent there ever were any, vanished that evening. His obvious intelligence, abundant qualifications, and even his wholesome good looks would have made sustained opposition difficult. Within a day of the Roberts choice, Republicans in the Gang of 14 were saying that his nomination did not constitute the “extraordinary circumstances” justifying a filibuster. More important, the Democrats in the gang quickly agreed. As Senator Joseph Lieberman said, “This is a credible nominee and not one that, as far as we know now, has a record that could in any sense be described as extremist.” With fifty-five Republicans in the Senate and a filibuster effectively off the table, Roberts could expect to cruise to confirmation. His hearings were set to begin on Tuesday, September 6, the day after Labor Day.
Rehnquist had surprised almost everyone by not resigning on the last day of the term in June. His voice had been raspy and his tracheotomy tube still in place, but his good humor that day suggested he might be holding his disease at bay. His stated hope to O’Connor that he wanted to serve one more year appeared plausible, if not exactly realistic.
But the chief’s health had declined over the summer. Anaplastic thyroid carcinoma is an especially virulent cancer; it is rare for patients to live longer than a year after diagnosis, and Rehnquist by summer had passed the eight-month mark. His mind never failed, and he was delighted to learn that Roberts, his former law clerk, had been nominated to serve with him. Only four former Supreme Court law clerks had gone on to become justices: Byron White (clerk for Chief Justice Fred Vinson), Rehnquist himself (for Robert Jackson), Stevens (for Wiley Rutledge), and Breyer (for Arthur Goldberg). Roberts would have been the first to serve alongside his one-time boss.
During the summer, although Rehnquist was twice taken to the hospital with breathing problems, his dry humor remained intact. When asked on his final visit to the emergency room who his primary care physician was, the chief muttered, “My dentist.” On Monday, August 29, he told a visitor to his home that he still planned to participate when the Court opened in October, but at that point there was nothing more his doctors could do for him. He died with his three children beside him in his town house in Arlington on the night of Saturday, September 3.
Earlier in the week of Rehnquist’s death, starting on August 29, Hurricane Katrina nearly demolished New Orleans and the surrounding area. The stumbling federal response to the crisis transformed the Bush presidency, including the selection of Supreme Court justices.
The president didn’t make it to the general vicinity of the damage until September 2, when he received a briefing at the airport in Mobile, Alabama. There, on that morning, Bush uttered one of the defining phrases of his presidency—“Brownie, you’re doing a heck of a job”—to the hapless director of the Federal Emergency Management Agency, Michael Brown. Even in the first few days after Katrina, it was clear that the White House needed any distraction from the calamity.
In normal circumstances, Bush might have taken some time to study his options following Rehnquist’s death on the Saturday of a holiday weekend. Cheney, as well as some others in the conservative movement, had been urging him to consider promoting Scalia, and the idea at least seemed worthy of some consideration. But Roberts’s nomination in July had been a total success, and now the administration—rather desperately—needed another. As almost always throughout his presidency, Bush defined success as pleasing his base.
Over the summer, conservatives embraced Roberts, who was little known outside Washington when he was nominated. During that time, reporters obtained access to about 75,000 pages of documents from Roberts’s days as a young lawyer in the Reagan White House. His memos showed him to be an enthusiastic