THE UNREQUITED BIPARTISANSHIP OF BARACK OBAMA
On December 5, 2008, Roberts sent Obama an invitation. With characteristic care, the chief justice researched how he should address Obama and came up with: “Dear Mr. President-elect.” The letter began:
Through the years, our respective predecessors have occasionally arranged a pre-inaugural meeting between the President-elect and Members of the Supreme Court, so that colleagues in public service might become better acquainted.
The Associate Justices and I would be pleased to see that sporadic practice become a congenial tradition. We cordially invite you and Vice President-elect Biden to visit us at the Supreme Court.
If your schedule permits such a visit, you will receive a warm welcome from the Members of the Court as you prepare to undertake your important responsibilities on behalf of the American people.
Ronald Reagan and George Herbert Walker Bush had met with the justices shortly before they took office in 1981, and Bill Clinton followed suit in late 1992. (The punctilious William Rehnquist long remembered that Clinton was forty-five minutes late for his visit; Clinton had such a good time that he also stayed a half hour late.) Roberts’s gesture was especially gracious, because both Obama and Biden had voted against his confirmation three years earlier.
At 3:45 p.m., on January 14, 2009, eight justices greeted the president- and vice president-elect in the West Conference Room of the Court. (Alito did not attend, even though he had been at oral arguments that morning.) Biden was the only person who knew everyone present. He had served on the Judiciary Committee since 1977 and had voted on the confirmation of all nine current justices. After a few initial pleasantries, Roberts made a pitch that he had coordinated with his colleagues. Judicial salaries had been stagnant for about a decade; lower-court judges were leaving the bench to pay for college tuitions. As a Washington veteran, Roberts knew that a personal appeal on this kind of issue would certainly have an impact and might make a difference. Greg Craig, an old Washington hand himself, and the White House counsel designate, had warned Obama that Roberts might bring up the topic. Obama said he supported a raise for federal judges, but he knew it would be a tough sell to Congress, especially in hard economic times. (The raise never happened.)
Roberts offered to show the pair his chambers, where the Court takes its votes in secret. They filed from the West Conference Room—which is one of the Court’s public spaces, often used for receptions—through the Great Hall, with its busts of chief justices, into the private realm of the justices. Like most of his recent predecessors, Roberts keeps a small office directly behind the bench in the courtroom. It’s next door to the conference room, which is still dominated by the massive desk where Charles Evans Hughes once presided.
The inner sanctum impressed Obama and Biden, as it does most everyone. The project to renovate the Court building, begun by Rehnquist, had nearly been completed. Warren Burger, in his day, had installed rows of fluorescent bulbs in the ceiling of the conference room, but Kennedy (the chair of the Court’s building committee) had found historically accurate chandeliers as replacements. Double-paned windows (highly resistant to most kinds of ammunition) gave the room a soft glow and distinct hush. After inspecting the Hughes desk, Obama lingered by the simple rectangular wooden table, with its nine chairs, that is the tangible symbol of the work of the Court. Like the President’s Oval Office, the Supreme Court’s conference table represents the power of the institution—and its mystique may be even greater because it is seen, especially in person, by so few.
“Is this where they decided Brown?” Obama asked.
Indeed it was, Roberts told him.
Toward the end of the meeting, Kennedy mentioned that there was a basketball court on the top floor of the Court building. “We hear you’re a basketball player,” Kennedy told Obama. “We’d like you to come play on the highest court in the land.”
“I don’t know,” Obama said. “I hear that Justice Ginsburg has been working on her jump shot.”
Six days later, Roberts performed the oath ceremony with Obama at the Capitol, and seven days later they had their repeat performance in the Map Room, at the White House. On January 26, Roberts presided over the installation of the new leader of the Smithsonian Institution. “Those of you who have read it will see from the program that the Smithsonian some time ago adopted the passing of a key in lieu of the administration of an oath,” Roberts said. “I don’t know who was responsible for that decision. But I like him.”
The work of the new administration began. On the morning of January 29, a raucous, almost giddy crowd filled the East Room, the location for the most formal and important occasions at the White House. Just after ten, the disembodied voice of an announcer silenced the audience. “Ladies and gentlemen,” it said, “the President of the United States, accompanied by Mrs. Lilly Ledbetter.”
Side by side, along the red carpet, Obama and Ledbetter walked slowly to the podium, while the audience stood, whooped, and hollered. “This is a wonderful day,” Obama began. More applause. “First of all, it is fitting that the very first bill that I sign—the Lilly Ledbetter Fair Pay Restoration Act”—more applause, even louder—“that it is upholding one of this nation’s founding principles: that we are all created equal, and each deserve a chance to pursue our own version of happiness.”
The bill to overrule Alito’s 2007 opinion in the Ledbetter case had been pending throughout the final year of the Bush administration, but Republicans had blocked it. In early January 2009, the new Congress finally passed the bill. The margins were 61–36 in the Senate and 247–171 in the House.
“Lilly Ledbetter did not set out to be a trailblazer or a household name,” Obama told the crowd in the East Room. “She was just a good hard worker who did her job—and she did it well—for nearly two decades before discovering that for years, she was paid less than her male colleagues for doing the very same work. Over the course of her career, she lost more than $200,000 in salary, and even more in pension and Social Security benefits—losses that she still feels today.
“Now, Lilly could have accepted her lot and moved on. She could have decided that it wasn’t worth the hassle and the harassment that would inevitably come with speaking up for what she deserved. But instead, she decided that there was a principle at stake, something worth fighting for. So she set out on a journey that would take more than ten years, take her all the way to the Supreme Court of the United States, and lead to this day and this bill which will help others get the justice that she was denied.”
Behind the new President, Joe Biden wiped tears from his eyes. Ruth Bader Ginsburg did not attend the proceedings, but she followed the fate of the Ledbetter bill with considerable interest, and greater pride.
Obama took office facing a wider range of challenges than any other president since Franklin Roosevelt. There were two wars and an economic collapse; there were restless Democratic majorities in both houses of Congress eager to put their stamp on a variety of issues, including health care, immigration, and climate change. Considering these burdens, it would not have been surprising if the new administration treated the issue of judicial nominations as a less than pressing priority.
That is precisely what happened. Indeed, a variety of other factors combined to give the issue even less attention than it might otherwise have received. Greg Craig had not sought the job of White House counsel. During the Clinton administration, he had watched that office become bogged down in fending off investigations by hostile Republicans, and at the age of sixty-three he had no longing for such enervating duties. He’d rather have worked in the State Department. But Craig didn’t believe in turning down requests from presidents, so he took the job. Obama also asked Craig to find a place on his staff for Cassandra Butts, one of the president’s law school classmates, who had also worked on the campaign. Craig agreed, and she became the deputy general counsel in charge of judicial nominations.
The problems began almost immediately. Through his years with Senator Edward Kennedy and later in the Clinton State Department, Craig had developed a special interest in international human rights. He made a personal mission of fulfilling Obama’s oft-repeated campaign promise to close the detention facility at Guantánamo Bay. Craig’s fixation with Guantánamo brought him into conflict with Rahm Emanuel, Obama’s chief of staff. Emanuel believed the president’s top priority (as well as his own) was to push Obama’s legislative agenda through Congress, starting with the economic stimulus bill and then health care reform. Emanuel regarded Guantánamo as a distraction that could only alienate members of Congress, where Obama’s margins were tiny. In those first months, there were fifty-nine Democrats in the Senate, and Republicans were filibustering on virtually everything, meaning the president needed sixty votes to pass bills. Obama had to claw for every vote he could get, and Emanuel—who was famously profane and opinionated—thought Craig was making the president’s job harder. Craig believed he was simply doing the work the president hired him to do. In short order, Emanuel and Craig loathed each other.
Butts did not have an easy time either. Craig had assembled a staff that was heavy on the qualifications that were valued at his law firm, Williams & Connolly. That meant an abundance of young, self-confident Supreme Court law clerks. Butts had gone to Harvard but she had spent much of her career on Capitol Hill, working longest for Congressman Richard Gephardt. In the recondite status hierarchies of the legal profession, Butts occupied a somewhat lower plane than the A students favored by Craig. There were tensions between Butts’s and Craig’s other underlings, who traded whispered complaints about arrogance and incompetence. Susan Davies, who worked under Butts on judicial nominations, had clerked for both Kennedy and Breyer and then served on Patrick Leahy’s staff on the Judiciary Committee. Davies and Butts embodied the internal culture clash.
Butts, and thus Obama, also had difficulties with the Senate. By long-standing tradition, senators of the president’s party controlled district court nominations in their states. It had been almost a decade since Democratic senators had had a chance to pick judges. Many were slow to put machinery in place to do so, and the senators also bristled at the Obama demand that they submit three names (instead of just one name) for every vacancy. The process stalled. Weeks, then months, passed.
George W. Bush had made a splashy show of his first set of judicial nominations. On May 9, 2001, Bush assembled his first eleven selections in a ceremony in the East Room. The group included two nominees to the D.C. Circuit, John Roberts and Miguel Estrada. (Democrats stalled Roberts’s nomination for two years before confirming him; Estrada was filibustered by Democrats and ultimately defeated.) Those two, as well as nominees like Terrence Boyle (a former aide to Senator Jesse Helms) and Jeffrey Sutton (a former Scalia clerk) indicated that Bush would work hard to put a conservative cast on the federal judiciary. The public nature of the occasion served as a clear demonstration of the centrality of judicial appointments in a Republican administration. It showed the voters and the Senate that Bush cared about his judges.
Obama took a different approach. He knew that Bush’s high-profile announcement of his first nominees was intended, and taken, as a provocation to his political adversaries. Obama preferred to try to lower the political temperature. He thought it would be better to start with a single, uncontroversial choice that would burnish his postpartisan credentials. In this way, he could show his good faith to Senate Republicans and expect similar fair dealing in return. So Obama wanted a first nominee who was sure to have Republican support.
As it turned out, there was a perfect candidate lined up. On March 17, 2009, President Obama nominated David Hamilton, the chief federal district court judge in Indianapolis, to the Seventh Circuit court of appeals. Hamilton had been vetted with care. After fifteen years of service on the trial bench, he had won the highest rating from the American Bar Association; Richard Lugar, the senior senator from Indiana and a leading Republican, was supportive; and Hamilton’s status as a nephew of Lee Hamilton, a well-respected former local congressman, gave him deep connections. The hope was that Hamilton’s appointment would begin a profound and rapid change in the confirmation process and in the federal judiciary itself. What could go wrong?
Almost everything. Not for the last time, Obama misread the political environment in the Senate. As they put it in the White House, “Hamilton blew up.” Conservatives seized on a 2005 case in which Hamilton ruled to strike down the daily invocation at the Indiana legislature because its repeated references to Jesus Christ violated the establishment clause of the First Amendment. Hamilton had also ruled to invalidate a part of Indiana’s abortion law that required women to make two visits to a doctor before undergoing the procedure. By the time Patrick Leahy, the chairman of the Judiciary Committee, scheduled a vote on Hamilton, in June, the best he could muster was a straight party-line vote, 12–7, in favor of the nomination. (Months of delay followed. The nomination did not reach the Senate floor until November 19, and Hamilton was confirmed by a vote of 59–39.) Obama had chosen the Hamilton nomination to send a message, but he wound up receiving one instead. Republicans cared about the courts.
And as everyone knew, a Supreme Court vacancy was imminent.
No justice on the Court spent more time on the job, or enjoyed it less, than David Souter. Six days a week, sometimes seven, Souter would drive his battered car into the basement parking lot and trudge up to his chambers on the first floor. On weekends, he would occasionally forswear his three-piece suit. Souter lived in a modest apartment in an unlovely neighborhood. He didn’t go to parties or even out to dinner. His world was mostly circumscribed by the jogging paths near his home and the corridors of the Supreme Court building. (In 2002, Souter did happen to attend a party to celebrate Strom Thurmond’s one hundredth birthday. Afterwards, he told his law clerks, “If I am still on the Court at eighty-five, I want one of you to shoot me.”) Even people who didn’t know much about the Court knew that David Souter hated Washington.
There was truth in this, but it was far from the whole story. In some ways, Souter didn’t mind having his unhappiness on the Court portrayed as a simple eccentricity, like his predilection for lunching on a cup of yogurt and an apple (including the core). This is a guy who doesn’t know how to use a computer or a cell phone—and, crazily enough, he doesn’t like Washington either! That kind of explanation obscured the more painful truth. Ironically, Souter liked Washington somewhat more in his later years on the Court, in part because he had his first serious girlfriend in years. It was true that Souter wanted to return to New Hampshire, but the reasons were harsher, and uglier, than a simple longing for the White Mountains. He abhorred the views of Roberts and Alito. Souter didn’t like what the Republican Party—his party—was doing to the Court, or to the country.
Souter identified with a tradition in American politics and law that had almost vanished from public life: the moderate Republican. As Souter was moving up the ranks in New Hampshire, from attorney general to the state supreme court, his mentor was Warren Rudman. New England used to abound in moderates like Rudman—and Lowell Weicker in Connecticut, Robert Stafford and Jim Jeffords in Vermont, and John Chafee in Rhode Island. On the Supreme Court, moderate Republicans had played crucial roles for decades: John Marshall Harlan II in the fifties, Potter Stewart in the sixties, Lewis Powell in the seventies, and Sandra Day O’Connor in the eighties, nineties, and beyond. As a group, they prized stability and venerated precedent. So did Souter, who liked to quote something that Rehnquist (hardly a moderate himself) used to say: “The law of the United States is like an ocean liner. You can’t turn it on a dime.” Scalia and Thomas, joined now by Roberts and Alito, thought otherwise and were trying to make that sharp turn in case after case. Moderate Republican ideas, like moderate Republicans, were disappearing from the Court as they were disappearing from the country.
For Souter, all his worries, all his distaste for the modern Court, had come together in a single case: Bush v. Gore. In the years since the decision, in 2000, there was a kind of informal agreement among the justices not to talk about it. They were used to disagreeing with one another, of course; that was the nature of the work. But the wounds of Bush v. Gore were so deep, the anger so profound on both sides, that it was thought best to avoid the subject altogether. Momentous Supreme Court cases tend to move quickly into the slipstream of the Court’s history. In the first ten years after Brown v. Board of Education, the justices cited the case more than twenty-five times. In the ten years after Roe v. Wade, there were more than sixty-five references to that landmark ruling. By the time Obama became president, it had been nearly a decade since the Court, by a vote of 5–4, terminated the election of 2000 and delivered the presidency to George W. Bush. Over that time, the justices provided a verdict of sorts on Bush v. Gore by the number of times they cited it: zero.
Bush v. Gore broke David Souter’s heart. The day the music died, he called it. It was so political, so transparently political, that it scarred Souter’s belief in the Supreme Court as an institution. Scalia, in his public appearances, would often be asked a hostile question about Bush v. Gore, and he always said the same thing: “Oh, get over it!” Souter never did. After the election of 2004, Souter almost quit the Court in disgust. After all, he thought, George W. Bush told the people what he wanted to do with the Supreme Court, and he won the election, so perhaps he should just let Bush have his chance. Souter thought of Oliver Wendell Holmes’s mordant observation about the role of a judge in a democracy: “I always say, as you know, that if my fellow citizens want to go to Hell I will help them.” A close friend in New Hampshire talked Souter out of quitting, but he was certainly ready to go by the time Obama won the election. Souter would not even turn seventy years old until later in 2009—still middle-aged for a Supreme Court justice—but he had had enough. Roberts and Alito were obviously intelligent and honorable men, Souter thought, but he didn’t recognize their approach to the law. He thought it was time to let someone else try to figure it out.
Through former Souter clerks on his staff, Greg Craig learned that Souter planned to leave at the end of the 2008–09 term. Souter asked his clerks to find out from Craig what the best time for his announcement might be. Craig sent back word that late in the spring would be better than earlier; that way, Obama could build up some momentum with other judicial nominations before moving on to the Supreme Court. In any event, the formal announcement leaked out rather awkwardly. On the evening of April 30, Nina Totenberg of NPR and Pete Williams of NBC announced that Souter would be retiring at the end of the term. The following day, other news outlets confirmed the story, but there was still no official word from Souter or the Supreme Court. Craig decided simply to call Souter and ask him what was going on. Souter confirmed that he was retiring and would write his formal letter of resignation the next day.
Supreme Court resignation letters are an art form. The justices know that the letter will be widely distributed, so they make an effort to craft a meaningful valedictory. “It has been a great privilege, indeed, to have served as a member of the Court for 24 terms,” O’Connor wrote in 2005. “I will leave it with enormous respect for the integrity of the Court and its role under our constitutional structure.” (This sentence reflected what O’Connor intended: her pride that the Supreme Court had reined in George W. Bush’s excesses in the war on terror.)
In contrast to O’Connor but in keeping with his singular style, David Souter wrote his letter with all the poetry of a phone bill:
Dear Mr. President,
When the Supreme Court rises for the summer recess this year, I intend to retire from regular active service as a Justice, under the provisions of 28 US.C. § 371(b)(1), having attained the age and met the service requirements of subsection (c) of that section. I mean to continue to render substantial judicial service as an Associate Justice.
Yours respectfully,
David Souter
Souter’s letter meant that he had served long enough as a federal judge to retire at full pay. (Years earlier, Souter had made a series of canny investments in New England bank stocks that multiplied in value and left him, with Ginsburg, as the wealthiest justice, with a net worth between $6 million and $27 million. But Souter remained at heart a frugal New Englander, and if he was entitled to retirement pay, he was going to take it.) Souter’s letter meant further that he wanted to continue sitting as a circuit court judge, as was his right, following his resignation as a justice.
More importantly, the letter meant that a Democratic president would have a chance to name a justice to the Supreme Court for the first time in fifteen years.
During those fifteen years, conservative ideas about the judiciary and the Constitution—especially originalism—enjoyed a great deal of prominence. To many in the liberal camp, the nomination of a new justice, and the confirmation hearings to follow, offered an excellent opportunity to put forth an alternative, progressive legal vision. To them, the point was not simply to confirm a Democrat but also to win the war over the interpretation of the Constitution.
Neither Obama nor the people around him wanted any part of such an undertaking. In the first place, that wasn’t the president’s style. He wasn’t looking to start fights that he didn’t need to have. Moreover, Obama himself had basically middle-of-the-road ideas about the Constitution, and he wanted a nominee with similar views. Finally, given the crowded legislative calendar, Obama and his team wanted a no-drama confirmation. His nominee should be confirmed with as little disruption as possible.
But who should it be? Back in Chicago, the week after the election, Obama had given his own list of four names to Craig and Axelrod: Sonia Sotomayor, Elena Kagan, Diane Wood, and Cass Sunstein. A young staffer on the transition, Danielle Gray, now a member of Craig’s staff, had drawn up the first memos about the candidates. Now, about six months later, the list had changed slightly.
Cass Sunstein had been a colleague of Obama’s at the University of Chicago Law School, where he was perhaps the most accomplished, and certainly the most prolific, legal scholar of their generation. Sunstein moved to Harvard Law School and worked on Obama’s campaign, where he met and later married Samantha Power, a human rights scholar and activist who had also become an adviser to Obama. Sunstein’s interests were a lot like Breyer’s—administrative law, government efficiency in all its forms. As a result, Obama had appointed him to a little-known but powerful job running the Office of Information and Regulatory Affairs at the Office of Management and Budget. Republicans knew Sunstein was a possible Supreme Court nominee, so they put him through an arduous confirmation process; he still had not been confirmed by the full Senate for his OMB job when Souter stepped down. Sunstein’s eclectic views had the ability to offend both the left and the right, and he liked being where he was. Sunstein was removed from consideration.
Janet Napolitano was added. Like Bill Clinton before him, Obama had mused about the need for nonjudges on the Supreme Court. In this regard, the transformation on the Court had been enormous. Only one of the justices who decided Brown in 1954 had ever been a full-time judge. (Sherman Minton was a former senator who had served on the Seventh Circuit; Hugo Black had been a part-time judge on a police court in Alabama.) When Alito replaced O’Connor, for the first time in history all nine justices were former federal appeals court judges. The change owed much to the differences in the confirmation process over fifty years. When FDR appointed figures like Felix Frankfurter (law professor and activist who had spoken out in defense of Sacco and Vanzetti), William O. Douglas (head of the SEC), and Robert Jackson (attorney general), the Senate did little more than act as a rubber stamp. That was true, too, when Eisenhower nominated Earl Warren, then governor of California, to be chief justice. But as senators started to apply greater scrutiny, especially after Robert Bork’s defeat in 1987, presidents started opting for safe nominees whose prior records were largely devoid of political expression. That meant judges, not politicians.
Napolitano had an extraordinary résumé—governor of Arizona, attorney general of the state, United States attorney as well. (Obama’s vetters took some sinister joy in noting, too, that one of Napolitano’s clients during her brief career in private practice had been Anita Hill. The possibilities for lively lunchtime conversations at the Court were duly noted.) But the prospect of scouring a lifetime of public appearances by a politician was daunting. Plus, Napolitano was off to a strong start as secretary of homeland security—a job that, if it could not win reelection for Obama, might lose it for him. Napolitano stayed on the list but, through no fault of her own, remained a problematic and unlikely choice.
Kagan was only an outside shot for the Souter seat as well. She, too, had been a professor at Chicago, where she became acquainted with Obama, and had gone on to service in the Clinton White House and then a successful tenure as dean of Harvard Law School. But it had been only a month since she was confirmed as solicitor general, and she had not yet argued a case for the government in the Supreme Court. Indeed, Kagan had never argued a case in any court throughout her entire career. She might be a strong candidate someday—but for now she came off the list.
The field—the real field—quickly came down to two: Diane Wood and Sonia Sotomayor.