Bench Memos

NRO’s home for judicial news and analysis.

Arkes, Clement, and Bush


With the greatest respect for my friend Hadley Arkes, I have to say I’m deeply troubled by his piece on NRO today. Hadley is convinced that the White House played a deft game of decoying the press in the direction of Judge Edith (Joy) Clement, thus smoothing the way for the evening announcement of the Roberts nomination last week. He notes at the end a regrettable aspect to this, namely “the wounding of Joy,” however much a consolation may await her in a future nomination.

But what exactly is Hadley’s evidence that the White House engaged in this tactic of misdirection? Only that “the word had been let out at the White House” about a Clement nomination, according to the reporters calling Hadley all day long last Tuesday. I’m skeptical. Hadley is closer to the scene than I (by several hundred miles), and there may be something else he is prudently not saying, but there are all sorts of ways that a game of “telephone” could have been started, with Clement suddenly “known” to be the pick, without anyone at the White House deliberately retailing the story.

My main reason for skepticism is that I find it hard to believe that George W. Bush, a man of often strikingly tender feelings and great kindness, would have willingly overseen such a tactic by his White House, or would not even now be terribly angry upon learning it had been done without his knowledge, given the “wounding” of Judge Clement that Hadley suggests occurred. And at such a price, the advantage in throwing the Democrats “entirely off balance,” with a day’s worth of wasted energy on the prospect of Clement, was a completely ephemeral one, as a president as politically smart as Bush would have known if anyone proposed this tactic to him.

Again, Hadley may know something else he is not saying and perhaps should not say. But his article gives me no reason to believe that the White House was behind a “head fake” toward Clement as they paved the way for Roberts. Now if President Bush worked this out with Joy Clement beforehand, and got her permission to use her as a decoy while pledging to keep her in mind for a future nomination, that would be both as Machiavellian as Hadley’s story, and as ethical as I believe the president to be.


Sign up for free NRO e-mails today:

Subscribe to National Review