It was a day no one would have believed. But it happened, and it’s worth recording–as a prime exhibit of the White House’s deftness in announcing the nomination of John Roberts to the Supreme Court.
I got involved in this because I had discussed, in an NRO piece, Judge Edith (“Joy”) Clement of New Orleans. Clement had been used as a decoy–in a ploy that deserves now to take its place in the political handbook. The objective was to draw off the attention, and the fire. It worked: By the time it became clear last Tuesday evening that the choice was John Roberts, the opposition had exhausted itself in drumming up a package of arguments and hyperbole over . . . Joy Clement. They were caught entirely off balance. Research had evidently gone on for months, and John Roberts had been an immensely plausible target. But no one was ready to come forth with a measured, rhetorical attack on John Roberts. It fell to the president to introduce him to the larger public on television. There would be no chance for Ted Kennedy or Chuck Schumer to taint Roberts in language colored, grotesque, untethered. The media ended up drawing the first reactions from those who knew the nominee best–and those reactions testified to his elegance, his remarkable craftsmanship and art as an appellate lawyer.
The most undeniable evidence for the deftness of the White House can be seen in my own day. I had gone to the hospital in the morning to look in on a friend, but by the time I returned, around 11 A.M., the calls were starting to come in–on the land line, on the cell phone, often on both at once. Fox News wanted an interview that afternoon and to book time the next morning. What was the story? The word had been let out at the White House that the choice would be Joy Clement. Fox was quickly followed by two different producers from NPR. Jeff Greenfield called from New York, asking just how I could be so sure that Joy Clement would vote to “flip” that decision on partial-birth abortion, and in that way end the regime of Roe v. Wade. I told him; he thought me plausible. Nina Totenberg called, but with far more wariness, not yet as convinced as the others that it would be Clement. Why were the social conservatives so certain that she would be with them? What did we know? Or why were we willing to take a chance? Mike Hedges then called from the Houston Post-Dispatch. Then came the calls from a paper in Sacramento, from the San Francisco Chronicle, from a paper in Kansas, from a radio station in Michigan. David Kirkpatrick called from the New York Times, with a fetching style: interested, searching.
Finally, NBC News wanted an interview for the evening news, on the different candidates, regardless of how it turned out. They would come to our house in Bethesda, Md., where they would disarrange the living room. I agreed, and taped the interview with John Holland. Half an hour later: The tape had gone bad–could we do it all over again? They could drive me this time to the studio. The first interview was fluent–who could be sure that I wouldn’t be stumbling on the second? But I asked myself: Would Cary Grant have been flustered? He would have summoned his urbanity–and done it again, with aplomb. And so we would try it again, but beginning at 6 P.M. for a program starting live in Washington at 6:30. By 6:20 we had finished. But then, as things stirred into action, the word came out: Everything may have to be rearranged, or even discarded, for the report had come through that the choice, after all, was not Joy Clement. Three hours of set-up and strain–and all for nothing. (Except the practice.)
When I got home, I found that the calls were still coming: Mike Hedges reported that the smart money was now moving to Michael Luttig! Luttig is another friend of mine, an even closer one; I could fill them in more fully on Mike, his writings, his judicial perspective, his family. He was very likely the pro-lifers’ first choice, what with his decision to sustain Virginia’s bill on partial-birth abortion. His former clerks were threaded through the government, and for the past eleven years all of his clerks had gone on to work at the Supreme Court. Such was the confidence of his colleagues in Mike as a teacher of lawyers.
Only by 8 P.M. did I learn that it would be John Roberts. Roberts’s wife, Jane, as a young lawyer had been a student in a jurisprudence seminar I had done in Washington; from what I had seen of Roberts himself, he bore out the estimate of the people who knew him more closely and whose judgment I respected. The critical ingredient here was “quality of mind”: an evident good nature allied with a steady temper and a scholar’s knowledge of the Constitution and the laws. He was in command of himself, rightly aimed, with a sound judgment.
For the pro-lifers, there were no clear intimations from Roberts’s own writings as to how he would deal with abortion. But the grounds for Bush’s choice were clear: He was inclined to go with one of the best lawyers that conservative jurisprudence could bring forth at this moment. Chuck Schumer and others were not even in Roberts’s league, and they would know that. The president could not know exactly what John Roberts would do with abortion, but he knew that Roberts knew the character of the administration that appointed him; he knew the circles from which Roberts had sprung; and he was willing to place his bets there for an appointment that could run for 25 to 30 years.
But then there was Joy. She too had heard the rumors in the morning, coming out of Washington. Yet, as she waited through the morning and afternoon, no call had come. The sense began to sink in that she had been the decoy. If I had felt, at the end of the day, that I’d been through the wringer, one could only imagine her own condition and state of mind. The White House had acted deftly–the feeding frenzy had shown that to me vividly. But there was a cost for the brilliance, and that was the wounding of Joy, as she was made to do a kind of sacrifice to offer cover and protection for John Roberts. One had to think also of Mike Luttig. But then there was the lingering prospect of consolation: There was likely to be yet another appointment fairly soon, and after that, who knows–perhaps even a third appointment, all within the time of George W. Bush. A new opportunity for deft staging–this time for Mike Luttig and Joy Clement–may yet come.
–Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College and a senior fellow at the Ethics and Public Policy Center in Washington.