The Nine - Jeffrey Toobin [150]
The candidates assembled that night began with Olson himself. He had a place on the short list, but no one, including Olson, thought he had much chance. He had never been a judge, his political activities had made him a Democratic target, and besides, at sixty-four he was probably too old.
Al Gonzales was there, receiving commiseration for the abuse he was taking from the movement conservatives—some of whom were also among Olson’s guests. Gonzales was technically still a possibility, but the conservative assault had taken its toll. He, too, looked like a very long shot.
Harvie Wilkinson, the courtly former chief judge of the Fourth Circuit, remained in the running. He was telling stories to his fellow guests in the same soft Virginia accent as that of his mentor, Lewis Powell. The O’Connor seat was vacant, but everyone knew Rehnquist probably wouldn’t last much longer, so many in the White House were planning for this first nominee to move up to chief justice. That was good for Wilkinson because he had the patrician charm of a Southern politician, a valuable skill for the more public duties of a chief. Still, Wilkinson was already sixty years old and, worse, he had the dreaded taint of moderation about him.
There were no such worries about Michael Luttig, whom no one ever called a moderate. Although Luttig was invited, he didn’t make it to Olson’s party, and his nonappearance reflected a problem with his candidacy: he was awkward and unsocial. Still, if anyone was the favorite for the job at this point, it was Luttig, Wilkinson’s colleague on the Fourth Circuit. Luttig was just fifty years old, the perfect age, a former Scalia clerk and a judge since 1991, with a network of former law clerks pressing hard for his appointment. Luttig still lived in Vienna, Virginia, a Washington suburb, and he remained well wired in the capital. He had been a groomsman at Roberts’s wedding.
Like Olson, Luttig had suffered a random tragedy. In 1994, his parents were the victims of a carjacking in their driveway in Tyler, Texas. His father was killed, and his mother survived only by playing dead. During the trial of his father’s killers, Luttig moved his chambers to Tyler and testified for the prosecution in the penalty phase. In 2002, Napoleon Beazley was executed for the murder.
John Roberts was there, too, of course, hanging back as was his custom, smiling at other people’s jokes, taking in the scene. In the sticky heat, Olson was wearing a Hawaiian shirt and shorts, but Roberts never removed his blazer and tie.
Anticipating that Rehnquist would resign, Bush’s advisers had prepared intensively for the end of the Court’s term in June. In May, all of the leading candidates were invited to Washington for interviews with senior administration officials. Luttig, Roberts, Wilkinson, and two others—Samuel A. Alito Jr., the veteran judge on the Third Circuit, and Edith Brown Clement, a much newer appointee to the Fifth Circuit—were questioned by a panel that included Gonzales, Andrew Card, Karl Rove, the president’s political adviser, Cheney, and Lewis Libby, the vice president’s chief of staff.
Clement was a surprise, because she had only joined the appeals court bench in 2001, after a decade as a federal trial judge in New Orleans. The presence of such an obscure figure in the final group—she had not written a single opinion of note—illustrated a problem with Bush’s stated goal of diversity when it came to Supreme Court appointments. Several Republican women appointed to the federal bench—like Edith Jones on the Fifth Circuit, the just-confirmed Janice Rogers Brown on the D.C. Circuit, and Priscilla