“Ask the Author” with Jan Crawford Greenburg: Part 1

Last week, we invited readers to submit questions to ABC News’s Jan Crawford Greenburg about her new book, Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court. Thanks to all who submitted questions.

Jan’s responses are in, and this entry is Part 1 of our discussion with her; parts 2 and 3 will be coming later in the week.

One reader was struck by how much insider access you seem to have had, particularly into the circumstances surrounding the nomination and subsequent withdrawal of Harriet Miers. Did you have access to inside information as events were unfolding or were you told about events afterward? Also regarding access, you have said that you were able to speak to nine current and former justices, including retired Justice O’Connor. Can you say who the one sitting justice is who wouldn’t speak with you?

I was covering the minute-by-minute nominations machinations for my job at the Chicago Tribune, so I had to have good sources at the time to illuminate my daily reports about who was in and who was out as White House legal advisors frantically searched for a nominee to replace Justice O’Connor. But it took some time afterward to convince insiders to tell me exactly what was really happening—and it wasn’t until Justice Alito was confirmed and on the bench awhile that I was able to finally crack the story. I think it just took time for the administration officials to feel comfortable looking back and opening up. And what a story it was! Since I’d been covering it as it unfolded, it was fascinating to hear all the things that were going on behind the scenes that I wasn’t privy to at the time. I was floored, for instance, to learn the White House called Alito to discuss his nomination before Miers had even written her letter withdrawing her own. And I couldn’t believe Miers herself had to be cajoled into withdrawing—that she was indeed the pit bull in size 6 shoes that President Bush described her as. Or that Gonzales had tried to block her nomination! It was thrilling to get all that information to provide a complete picture of what the White House staff was thinking—as well as to understand how they could blunder so spectacularly with the nomination.

As for the Justices themselves, I was indeed fortunate to be able with talk to nine of them, including Justice O’Connor, who spent several hours with me on a couple occasions after she left the bench. My interviews were wide-ranging, covering everything from how the justices came to be nominated and what their entry on the Court was like to how they viewed the Court and their roles as judges. The ground rules for the interviews varied somewhat, which means I can’t disclose the name of the justice who refused to speak with me.

Several readers were curious about the feud you describe between Judges Silberman and Luttig. Can you offer a bit more detail about how that seemed to affect everything surrounding the nominations? Does this dispute continue to divide those whose task it is to consider nominees for any vacancy that occurs between now and January 2009?

There’s no question that various nominees developed reputations within the White House, whether fairly or unfairly, that ultimately led to the decision to nominate Roberts and Alito, who were seen as confirmable and conservative. If you plotted Roberts and Alito out on a graph, as one insider put it, both had the highest scores in those two areas. The feud between Silberman and Luttig (which erupted over their hiring law clerks) was well-known inside the administration. Silberman didn’t lobby against Luttig or discuss it with his friend, Dick Cheney; he didn’t have to. There should be no doubt the feud hurt Luttig, who had long been considered the vanguard of the conservative legal movement and a likely Court pick. But Bush was looking for confirmable and congenial nominees, and he thought Roberts and Alito better fit the bill. I can’t imagine that calculation changing between now and 2009. Feud or no, if George Bush gets another nomination, he will not be nominating Mike Luttig – or J. Harvie Wilkinson, the other contender. He’ll nominate a woman or minority.

You spend a lot of time talking about how the first President Bush’s nomination of Justice Souter is considered one of the biggest mistakes by a Republican president in the last half-century. Can you talk a bit more about what went wrong? Do you believe that Justice Souter was always liberal and the White House just did not do its homework? Or, as one reader asks, did he start out with a more conservative judicial philosophy and swing leftward for one reason or another?

The chapter in my book about the Souter nomination is called “The Devil You Don’t.” That derived from a remark by a senior administration official, who summed up the decision to nominate David Souter this way: “There’s the devil you know, and the one you don’t. We went with the one you don’t.” Of course, as I report, the “devil you know,” the person who was passed over, was none other than Kenneth Starr. Incredibly, a group of attorneys in the Justice Department opposed Starr’s nomination because they believed he wasn’t conservative enough. That led to the “devil you don’t,” David Souter. Souter’s nomination came about through a combination of vetting failures in the White House and those internal personality disputes at the Justice Department. I don’t think he “evolved” or changed once on the Court—unlike other justices, such as Kennedy or O’Connor. Souter may have said he was a conservative, but he didn’t know himself. He’d never had a philosophy—he hadn’t ruled on substantial constitutional questions. That became clear in the confirmation hearings, when conservatives watched with alarm as he heaped praise on Justice Brennan, defended the rulings of the Warren Court and rejected Scalia’s conservative legal theories.