Late Monday night word began spreading across Washington that President Bush has a Supreme Court nominee and that she hailed from the 5th Circuit down in the Big Easy.
Edith “Joy” Clement by Tuesday morning was a household name to any political junkie in America. Liberal groups sprung into motion, claiming she was an extremist, while up on Capitol Hill, her name resonated with Republican Senators and sucked the spirit out of Democrats who doubted they could put up a serious fight against a Southern belle from Alabama.
“Clement’s name was everywhere in town, and it was kind of dispiriting because we were hoping that we’d at least be able to put up a couple of weeks of protest and yell a little bit,” says a Democratic Senate staffer. “With Clement, it was going to be tough to do, but we jumped on it and got to work.”
Clement was not the first pick of conservatives, nor was she the last. With word coming from Chief Justice William Rehnquist that he would not retire, the thinking inside the White House and among outside advisers was that Bush was turning to a list of mostly qualified, conservative female jurists.
“We were thinking woman, and we were thinking little paper trail,” says a Democratic Judiciary Committee staffer. “Clement seemed to fit that description. We were sending her data around to our bosses before lunchtime.”
ALL THAT EFFORT CAME TO a screeching halt at about 2:15. Republican insiders began putting out the word that Clement might not be the final pick. There were rumors that her fellow 5th District judge Edith Jones had been seen arriving at Reagan National Airport on Monday night, and that she was in fact the nominee.
But some obstinate conservatives refused to buy into the gossip; some, particularly third-party aligned with former Republican Judiciary staffers and Bush 41 staff, claimed they were personally briefed at the White House and were informed that someone of Clement’s character would be the nominee.
So much for posturing.
By 3:30 the name of Judge Michael Luttig began to circulate, and staff in the White House (ironically doing for journalists what Karl Rove did for Time magazine’s Matt Cooper) began steering reporters away from Clement, and toward other potential nominees.
In fact CNN’s John King reported live that Republican staffers were steering him away from Clement. One hopes Democrats won’t be calling for another special prosecutor in this case.
Luttig rumors began to take hold of D.C., but not before the John Roberts‘ name began to generate increasing buzz a little after 6 p.m., about an hour before the Roberts family was expected to arrive at the White House for a tour and dinner with the President.
ACCORDING TO WHITE HOUSE staff and outside advisers on the nomination process, the Roberts nomination sends a very clear signal to both conservatives and Democrats.
“This choice sends the message that this President has the desire to not get boxed in by his enemies,” says a White House source. “He could have taken the easy way out, or comparatively easy way out, and nominated a perfectly acceptable woman like Clement, or even Jones. But he didn’t. He replaced a woman justice with a man, and real conservative one at that. If that doesn’t send a message to Republicans about where this President’s head is at, I don’t know what will. It makes those buffoons who spent all their time harping on [Attorney General Alberto] Gonzales look like petty whiners. Now these folks are going to try to take credit for the Roberts nomination, but they have nothing to stand on. Credit for this nomination belongs to the President, Karl Rove, Senator Bill Frist and the White House and Senate leadership staff who did the heavy lifting.”
“Another point,” says a senior Senate staffer, “is that despite all the talk of compromise and consultation, the Roberts pick was not something Democrats would have supported wholeheartedly under any condition. This is a nominee who is disliked by Senators Schumer, Leahy and Kennedy. This is a shot across the extremist left bow, and it shows that the President is perhaps willing to sacrifice on the legislative agenda front for the big, long-term gains a Roberts on the court represents.”
BY 8 P.M., LIBERAL GROUPS had essentially deleted the name of Clement on their press releases and e-mails and inserted Roberts’ name. At that point the White House strategy, and those of such top-flight outside advisers as Ted Olson, Barbara Comstock, and Boyden Gray became apparent. The similarity of liberal reactions to Clement and Roberts gave lie to the extreme left’s approach to any nominee: smear first, learn later.
“We’ve boxed the MoveOn types and the Ralph Neas types with today,” says a Senate Judiciary Republican staffer. “They have no standing. They’d attack anyone, regardless of credentials.”
That said, the Roberts nomination is expected to generate some heat, at least in the short term, though according to Democratic strategists who have briefed Senate Democratic leaders, Minority Leader Harry Reid is expected to not put up a full frontal attack against Roberts.
“We are expecting one, if not two, more nominees to the Supreme Court this calendar year,” says a senior Democratic strategist. “We have to be true to our values and defend them against a nomination like Roberts, but we have to be realistic. He’s going to get through. But we have bigger fights ahead that will be even more pivotal. We’ve advised folks to keep their powder dry and not to waste it on this fight. Wait for the biggies to come.”
ADDING TO THE INTRIGUE of a Judge John Roberts nomination to the Supreme Court is what will happen to his vacated seat on the D.C. Circuit Court of Appeals once he is confirmed.
According to White House sources, one name that has already been considered is that of Miguel Estrada, who had previously been a Bush nominee to the federal bench, but who was blocked by Democrats on the Senate Judiciary Committee. Estrada has said for some time that he had no interest in revisiting what for a number of reasons was a painful period for his family. But recent indications are that Estrada might be willing to give it another shot.
WHITE HOUSE STAFF AND INSIDERS at the Department of Justice insist that they continue to expect as many as two additional vacancies on the Supreme Court. “We’ve operated from that assumption that once the Chief Justice saw where this was headed, he would be comfortable in stepping aside on his own timetable,” says a White House staffer. “We think he’ll be happy with Roberts, and will want to at least work with him a bit, but that his retirement will come.”
That retirement would most likely lead to another conservative nomination, perhaps Clement, perhaps Jones. Should either Justices Ginsburg or Stevens retire, Republican Senate sources say, Senators sitting on the Judiciary Committee have told the President during consultations that Attorney General Alberto Gonzales would be an acceptable nominee.