“ON BEHALF OF THE STRONG IN OPPOSITION TO THE WEAK”
On gun control, Obama played to his instinct for compromise and conciliation. Politics often lends itself to these sorts of solutions. But sometimes a senator, like a justice, simply has to make a decision. On one of these occasions, during his brief career in the United States Senate, Obama had a real struggle: the nomination of John Roberts to be chief justice of the United States.
Obama and Roberts had met only once, in the fall of 2005. Roberts had already called on most of the senators when he finally made it to Suite 713 in the Hart Building, the remote lodging to which junior senators like Obama were assigned. Roberts was exceptionally good at these courtesy calls: knowledgeable but not arrogant, open but noncommittal. As far as Obama was concerned, the judge had a lot going for him. Obama valued credentials, and Roberts had the best of their shared generation, not least a Harvard Law degree. For his part, Roberts had the same instincts about Obama. Judicial candidates making the rounds of senators quickly suss out the gasbags from the players, and there was no doubt in Roberts’s mind of the future president’s intelligence.
In the end, Obama’s vote on Roberts had little to do with the nominee’s qualifications, or even Obama’s feelings about him. The senator consulted some of his law professor friends, like Laurence Tribe, at Harvard, and they told him that Roberts was about as good as anyone could expect from the Bush administration. The judge was conservative, Tribe said, but perhaps he’d keep an open mind. But the advice that mattered most to Obama came from his own chief of staff, Pete Rouse, a Washington veteran. Rouse told Obama, in effect: Cut the shit. You can’t run for the Democratic nomination for president and also vote to confirm George Bush’s nominee for chief justice. The Democrats who vote in primaries care too much about these issues—like abortion rights—for you to vote for a justice who might overturn Roe v. Wade. Obama couldn’t disagree.
So Obama voted no, one of only twenty-two negative votes. (Obama’s future rival Hillary Clinton voted the same way.) Still, Obama’s statement on the Senate floor reflected his ambivalence on the nomination. “There is absolutely no doubt in my mind Judge Roberts is qualified to sit on the highest court in the land,” Obama said. “Moreover, he seems to have the comportment and the temperament that makes for a good judge. He is humble, he is personally decent, and he appears to be respectful of different points of view. It is absolutely clear to me that Judge Roberts truly loves the law.” Exaggerating slightly, Obama said 95 percent of cases at the Supreme Court were easy; “a Scalia and a Ginsburg will arrive at the same place most of the time.” (About a third of cases are unanimous each year.)
Obama went on: “What matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.… In those difficult cases, the critical ingredient is supplied by what is in the judge’s heart.
“I talked to Judge Roberts about this. Judge Roberts confessed that, unlike maybe professional politicians, it is not easy for him to talk about his values and his deeper feelings. That is not how he is trained. He did say he doesn’t like bullies and has always viewed the law as a way of evening out the playing field between the strong and the weak.”
But that wasn’t enough for Obama. “The problem I had is that when I examined Judge Roberts’s record and history of public service, it is my personal estimation that he has far more often used his formidable skills on behalf of the strong in opposition to the weak. In his work in the White House and the Solicitor General’s Office, he seemed to have consistently sided with those who were dismissive of efforts to eradicate the remnants of racial discrimination in our political process. In these same positions, he seemed dismissive of the concerns that it is harder to make it in this world and in this economy when you are a woman rather than a man.”
Quickly, though, right after Obama voted no, he engaged in a characteristic gesture. The very next day, Obama posted a statement on DailyKos, the website that served as the unofficial home of the Democratic Party’s Netroots, defending his colleagues who voted yes. The point Obama made was a familiar one for those who had followed his thinking about the courts. “There is one way, over the long haul, to guarantee the appointment of judges that are sensitive to issues of social justice, and that is to win the right to appoint them by recapturing the presidency and the Senate,” Obama wrote. “And I don’t believe we get there by vilifying good allies, with a lifetime record of battling for progressive causes, over one vote or position. I am convinced that, our mutual frustrations and strongly held beliefs notwithstanding, the strategy driving much of Democratic advocacy, and the tone of much of our rhetoric, is an impediment to creating a workable progressive majority in this country.” As usual with Obama, it was about elections, not lawsuits.
Four months later, when Alito came up for a vote, that was an easier call for Obama, and for most other Democrats. Alito had little of Roberts’s charm, and his record on the bench offered no promise of moderation. Like Roberts, Alito had been a young recruit to the Justice Department during the Reagan administration, first in the office of the solicitor general and then in the office of legal counsel. He was appointed United States attorney in his native New Jersey in 1987 and then three years later, at the age of forty, won appointment to the Third Circuit. There he never varied from the conservative line and made a particular name for himself as an opponent of abortion rights. Shortly after Alito joined the Third Circuit, he voted to uphold a Pennsylvania law that required wives to inform their husbands before they obtained an abortion. It was this provision in particular that offended O’Connor and prompted her vote to overturn the law in the famous Planned Parenthood v. Casey decision of 1992, the ruling that preserved the core of Roe v. Wade. For this reason, Alito was an especially fitting replacement for O’Connor—because he reflected how much the Republican Party had changed since her appointment. From the moment Bush named Alito, it was clear what kind of justice he would be. For this reason, Obama voted no, but Alito was confirmed by 58 to 42.
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Obama’s intelligence was tempered by a grace and serenity, but he was matched in these qualities by the new chief justice. From his earliest days, Roberts was an enormously successful student who excelled without calling a great deal of attention to himself. He had taken enough advanced placement tests at La Lumiere to skip his freshman year at Harvard, and it took him only three years to graduate summa cum laude. Three years later, in 1979, he earned his degree from Harvard Law. But Roberts’s professional career was about ideology as much as brilliance and charm. At every step, Roberts’s work mirrored, and hastened, the conservative movement in the law.
Roberts’s two judicial clerkships traced the trajectory of the Republican Party at large. Henry Friendly was appointed to the Second Circuit by Dwight Eisenhower, in 1959. Friendly and his circle of lawyers were based in New York, and many received their start in law, and politics, when they worked for Thomas E. Dewey, the crusading local prosecutor and governor who nearly won the presidency in 1948. They were close to Wall Street and big business—Friendly had been general counsel to Pan American World Airways—and they took a progressive attitude toward the racial struggles that were convulsing the country. On the Supreme Court, this group was represented by John Marshall Harlan II, a frequent dissenter during the liberal heyday of the Warren Court. Friendly believed in respect for precedent, gradual change, and almost scientific expertise in the law. Friendly was as far from a Scalia-style conservative as he was different from a Brennan-style liberal. The politics of Friendly’s law clerks ran the ideological gamut.
On the other hand, Rehnquist stood on the rightward fringe of the Court in 1980, when Roberts joined him. Rehnquist came of age politically as a westerner, an Arizonan, and he had little in common with the gradualism of northeastern Republicans like Friendly. Rehnquist was skeptical of government efforts to promote civil rights and downright hostile to the Court’s effort to broaden individual rights. (In his second year on the Court, Rehnquist was one of only two dissenters in Roe v. Wade. Byron White, who was appointed by John F. Kennedy, was the other.) Rehnquist’s ideology never changed, and it left a deep impression on Roberts.
Years later, Roberts gave a speech about Rehnquist that illustrated as much about Roberts as about his mentor. “When Justice Rehnquist came onto the Court, I think it’s fair to say that the practice of constitutional law—how constitutional law was made—was more fluid and wide-ranging than it is today, more in the realm of political science,” Roberts said. “Now, over Justice Rehnquist’s time on the Court, the method of analysis and argument shifted to the more solid grounds of legal arguments—what are the texts of the statutes involved, what precedents control. Rehnquist, a student both of political science and the law, was significantly responsible for that seismic shift.”
At the time Rehnquist joined the Court, its liberals had reigned for two decades. Through the Warren and even the Burger years the justices expanded civil rights protections for minorities, established new barriers between church and state, encouraged civil litigation to challenge business and government practices, and, of course, recognized a constitutional right to abortion for women. This “fluid and wide-ranging” jurisprudence, in Roberts’s contemptuous phrase, had become the new status quo at the Supreme Court. In Roberts’s telling, Rehnquist had been responsible for a “seismic shift” away from these liberal excesses, but that wasn’t precisely accurate. Most of the Warren Court precedents were still on the books; there had been no seismic shift—yet. It was Roberts’s mission to lead the counterrevolution that his mentor had begun.
In the middle of Roberts’s clerkship, Ronald Reagan was elected president. “I was trying to decide what to do next,” Roberts later recalled in a speech at the Reagan Library. “Then he spoke these words and, like so many of the president’s words, I felt he was speaking directly to me. He said, ‘I do not believe in a fate that will befall us no matter what we do; I do believe in a fate that will fall on us if we do nothing.’ And that is what Ronald Reagan was and is and remains today to me: a call to action.” Roberts put off more lucrative options and joined the new administration, first as an assistant to William French Smith, the attorney general, and then in the White House counsel’s office. In his speech, Roberts recalled his first day of work at the White House. “Could I hold for the President? Well, yes, I could. This was an example of the President’s famous charm, with all he had to do, calling a new staffer on his first day to wish him well. I did, I think, what most people do when they get a call from the President at their desk: I stood up. A few minutes went by, but of course that’s understandable, he’s the President, he’s probably finishing up a call with Brezhnev or something. A few more minutes went by … I sat down. I figured that I’d stand up when the President came on the line … A few more minutes went by. Then I heard the muffled laughter outside my door … I put the phone down and went to the little anteroom. In there, of course, were my new colleagues in the White House Counsel’s office, who had placed the phony call from the President. They had a betting pool how long I would stay on hold … Whoever had the 15- to 20-minute slot won that money.”
Roberts was not a policy maker, of course, but his memos from that era reveal a self-assured and loyal member of the Reagan team. He referred in one memo to Smith to an article that mentioned the “so-called ‘right to privacy,’ arguing as we have that such an amorphous right is not to be found in the Constitution.” For someone who was only twenty-seven when he joined the White House staff, Roberts wrote with unusual confidence. When a Democratic congressman proposed a conference on power sharing among the different branches of government and a report on the subject, Roberts dismissed the idea this way: “There already has, of course, been a ‘Conference on Power Sharing.’ It took place in Philadelphia’s Constitution Hall in 1787, and someone should tell [Congressman] Levitas about it and the ‘report’ it issued.” In the eighties, the Supreme Court was deciding as many as 150 cases a year, and the justices were laboring under the weight of the caseload. Warren Burger advocated a proposal to add a kind of super-appeals court above the circuit courts, to relieve the justices of some of their burdens. Roberts was not impressed with the idea, writing to his boss, the White House counsel: “While some of the tales of woe emanating from the Court are enough to bring tears to the eyes, it is true that only Supreme Court justices and schoolchildren are expected to and do take the entire summer off.”
Roberts spent the last few years of the Reagan presidency beginning his career at Hogan & Hartson, but he returned to government at the start of the first Bush administration, when Kenneth Starr recruited him to be his deputy at the solicitor general’s office. Starr had a genteel style as the government’s principal advocate before the Supreme Court—he was nicknamed the Solicitous General—but the office took a series of strongly conservative stands on the merits. Again, Roberts was following administration policy, but he had no problem signing briefs that called for overruling Roe v. Wade and limiting traditional civil rights remedies. As was customary, Starr himself argued the most high-profile cases for the government in this period, but Roberts also became a regular presence before the justices. His earnest midwestern manner—matched, of course, by his keen intellect, sharp wit, and great memory—made him an immediate favorite of the justices. Roberts made such a powerful impression in the S.G.’s office that Bush nominated him for the D.C. Circuit in 1992, when he was only thirty-seven years old. The Democratic blockade of Roberts’s nomination was a tribute of sorts as well. Both sides knew even then that he might well be destined for the Supreme Court. Roberts never received an up-or-down vote in the Senate, so he returned to private practice in 1993.
For much of the Court’s history, cases were often argued by the lawyers who originally represented the clients in the lower courts. Lawyers in the solicitor general’s office were almost the only Supreme Court specialists. But Roberts came of age at a time when Supreme Court advocacy became its own niche in the legal profession. Starting in the 1990s, a Supreme Court bar began to expand, and Roberts was the leading figure in his generation. In all, Roberts had thirty-nine arguments at the Court, and he won about twenty-five of them. (The number is not precise because some cases had mixed or inconclusive results.)
The professional background of a justice invariably shapes his or her approach to the job. Temperamentally, Rehnquist never left the Nixon Justice Department, where he was the assistant attorney general charged with building a tough-on-crime agenda; O’Connor, the former Arizona state senator, never stopped being a politician; Scalia and Stephen Breyer remained forever the law professors they once were. John Roberts was a litigator whose primary responsibility was to figure out ways to win. For Roberts, the law, ultimately, was all about winning.
The modern Republican Party put judicial issues near the top of its agenda. The priorities included the recognition of Second Amendment gun rights, the end of constitutional protection for the right to choose abortions, and the lowering of barriers between church and state. Democrats paid less attention to these issues, or the courts generally—as Obama himself demonstrated in his campaign.
Obama declared his candidacy for president on February 10, 2007, on the steps of the Old State Capitol, in Springfield, Illinois. The themes of his speech—hope, change, and an end to the war in Iraq—were central to his effort over the next twenty-one months. Through the many long days leading up to his victory in the Iowa caucuses, the four months of head-to-head combat with Hillary Clinton, and the general election campaign against John McCain, Obama limited his discussion of the Constitution to generalities. (“I believe in the Constitution, I’ve taught the Constitution, and I will obey the Constitution,” he often said in his stump speeches.) Obama and Clinton differed on very little, including legal issues. Against McCain, Obama’s message of change, which resonated even more strongly after the economic collapse, clearly seemed to be working. Obama’s very existence, as the first African American to approach the presidency, said more about equality than any invocation of the Fourteenth Amendment. Still, it is at least worthy of note that Obama, who was, as he often mentioned, a law professor, managed to campaign for nearly two years without saying much of anything about the Supreme Court or the laws that it interpreted.
McCain took a different approach, at least once. Throughout his long political career, the Arizona senator had never shown a particular interest in legal issues; his signature causes were national security and campaign finance. But McCain felt obligated to express his fealty to the contemporary Republican vision about the Constitution. In a speech at Wake Forest University, in Winston-Salem, North Carolina, on May 6, 2008, he said, “The framers of our Constitution had a knack for coming right to the point, and it shows in the 35-word oath that ends with a pledge to preserve, protect, and defend the Constitution itself.”
McCain had already clinched the Republican nomination, so he was in general election mode. He avoided direct mention of incendiary topics like abortion, and he spoke in a code familiar to those who follow constitutional law, leaving them in no doubt where he stood. He addressed what he called “the common and systematic abuse of our federal courts by the people we entrust with judicial power. For decades now, some federal judges have taken it upon themselves to pronounce and rule on matters that were never intended to be heard in courts or decided by judges.” This, of course, was a view functionally identical to President Bush’s often-expressed contempt for judges who “legislate from the bench.” McCain then cited what he saw as an example of such abuse. “Sometimes the expressed will of the voters is disregarded by federal judges, as in a 2005 case concerning an aggravated murder in the state of Missouri,” he said. “As you might recall, the case inspired a Supreme Court opinion that left posterity with a lengthy discourse on international law, the constitutions of other nations, the meaning of life, and ‘evolving standards of decency.’ These meditations were in the tradition of ‘penumbras,’ ‘emanations,’ and other airy constructs the Court has employed over the years as poor substitutes for clear and rigorous constitutional reasoning.”
McCain did not reveal the subject matter of this supposed judicial outrage. The case was Roper v. Simmons, in which a seventeen-year-old boy was sentenced to death for murdering a woman after breaking into her home. Kennedy’s 2005 opinion overturned the sentence and held that the Constitution forbade the death penalty for juvenile offenders. McCain’s reference to the Court’s “discourse” on the law of “other nations” referred to the justices’ observation of the “stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty.” Likewise, Kennedy noted that the only other countries to execute juvenile offenders since 1990 were China, Congo, Iran, Nigeria, Pakistan, Saudi Arabia, and Yemen.
Nor were McCain’s references to “penumbras” and “emanations” accidental. Those words came from Justice William O. Douglas’s 1965 opinion for the Court in Griswold v. Connecticut, in which the justices recognized for the first time a constitutional right to privacy and ruled that a state could not deny married couples access to birth control. The “meaning of life” was a specific reference, too. It came from the Court’s 1992 opinion in Casey, which reaffirmed the central holding of Roe v. Wade and forbade the states from banning abortion. In short, this one passage in McCain’s speech amounted to a kind of dog whistle—a signal (to those who could hear it) that he would appoint justices who would eliminate the right to privacy, permit states to ban abortion, and allow the execution of teenagers.
Rather than challenge McCain or present an alternative vision for the courts, Obama chose to discuss only the subjects that had been working for him. When it came to the Constitution, it was clear that Obama’s agenda was the opposite of change. In an interview with the Detroit Free Press, just one month before Election Day, he displayed characteristic caution. In the course of a single short answer, it was possible to watch Obama’s mind in action. He was asked which justices would serve as models for his own Supreme Court appointments. “There were a lot of justices on the Warren Court who were heroes of mine, Warren himself, Brennan, [Thurgood] Marshall,” Obama said, but then he appeared to realize that he might be endorsing an unduly liberal agenda, so he added: “But that doesn’t necessarily mean that I think their judicial philosophy is appropriate for today.”
Obama went on: “Generally, the court is institutionally conservative. And what I mean by that is, it’s not that often that the court gets out way ahead of public opinion. The Warren Court was one of those moments when, because of the particular challenge of segregation, they needed to break out of conventional wisdom because the political process didn’t give an avenue for minorities and African Americans to exercise their political power to solve their problems. So the court had to step in and break that logjam.”
But times were different now, Obama said. “I’m not sure that you need that. In fact, I would be troubled if you had that same kind of activism in circumstances today. So when I think about the kinds of judges who are needed today, it goes back to the point I was making about common sense and pragmatism as opposed to ideology. I think that Justice Souter, who was a Republican appointee, Justice Breyer, a Democratic appointee, are very sensible judges.” To some, this answer looked like political caution. Embracing Souter and Breyer, instead of Brennan and Marshall, was unlikely to cause offense or cost him votes. It is true that the answer was very, very careful—but it did accurately reflect Obama’s temperament as well as his views about the Supreme Court. After Obama became president, some of his supporters urged him to nominate the kind of judges he “really” wanted—outspoken liberals. But that supposition misread the man. He “really” wanted judges like Souter and Breyer.
In that final month before Election Day, Obama had a clear lead in the polls and a final obstacle to overcome, the last of the three debates with McCain. Each campaign season, it was a tradition of sorts for the moderator to ask one question about abortion and Supreme Court appointments; on October 15, 2008, it fell to Bob Schieffer to raise the issue with the candidates.
McCain answered first, saying he would never impose a “litmus test” for his prospective appointments, but also making clear that he thought Roe v. Wade was “a bad decision.”
Obama responded, “It is true that this is going to be, I think, one of the most consequential decisions of the next president. It is very likely that one of us will be making at least one and probably more than one appointments and Roe versus Wade probably hangs in the balance.
“Now I would not provide a litmus test, but I am somebody who believes that Roe versus Wade was rightly decided. I think that abortion is a very difficult issue, and it is a moral issue and one that I think good people on both sides can disagree on. But what ultimately I believe is that women in consultation with their families, their doctors, their religious advisers, are in the best position to make this decision. And I think that the Constitution has a right to privacy in it that shouldn’t be subject to state referendum, any more than our First Amendment rights are subject to state referendum, any more than many of the other rights that we have should be subject to popular vote. So this is going to be an important issue. I will look for those judges who have an outstanding judicial record, who have the intellect, and who hopefully have a sense of what real-world folks are going through.”
On November 4, 2008, Barack Obama was elected president, with 365 electoral votes. He received 69 million popular votes to McCain’s 59 million, representing a margin of 53 percent to 46 percent. At the time of the election, the American economy was nearing free fall. The collapse of the bubble in housing prices had led to huge losses in financial firms that had sold securities based on mortgages. To prevent those firms from going out of business, Congress passed the Troubled Asset Relief Program (TARP), which Bush had signed on October 3, authorizing $700 billion in bailouts. The major banks survived, but business activity nearly ground to a halt. About 700,000 Americans per month were losing their jobs. Working from transition headquarters in a Chicago high-rise, Obama and his staffers spent most of their time figuring out how to address the crisis.
Still, the work of judicial selection, including for the Supreme Court, now moved from abstraction to reality. In August, after Obama had clinched the Democratic nomination, a lawyer in New York received a confidential assignment from the transition team, which was just then being formed. Preeta Bansal, who was then a partner at the law firm Skadden, Arps and formerly solicitor general of New York State, was asked to prepare a series of memorandums about how a President Obama might approach the federal judiciary. She projected the number of likely vacancies, examined the ethnic and professional backgrounds of current federal judges, and compiled the first list of possible nominees for the new president to consider. There were other issues, too. Should Obama announce his first nominations as a group, as Bush did, or one at a time? (Obama chose one at a time.) Should the new administration cooperate with the American Bar Association, which had traditionally rated nominees but which had been pushed out of the process by recent Republican administrations? (Obama’s team decided to reestablish the connection, but only after securing a pledge from the ABA that the group would act quickly.)
As Obama himself now recognized, there was no longer time for abstract discussions—or even intentional evasions—on the subject of the Supreme Court. About a week after the election, while the group was still working in Chicago, Obama summoned Gregory Craig, the future White House counsel, and David Axelrod, his top political aide, to discuss judicial nominations for the first time.
“It looks like we might have a Supreme Court appointment soon, so we need to be ready,” Obama told them. “I have a list.”