Justice Harry Blackmun teasingly referred to himself and his colleague, Justice Anthony Kennedy, as “Old #3.” The label derived from the fact that both had been the third choice of their respective appointing presidents, Richard Nixon and Ronald Reagan, when chosen to serve on the U.S. Supreme Court.
By Blackmun’s counting, Justice Samuel Alito might be viewed as “Old #2½.” Despite making President George W. Bush’s short list to replace retiring Sandra Day O’Connor in 2005, Alito lost out to John Roberts. When Roberts’s mentor, Chief Justice William Rehnquist, died a few weeks later, Bush immediately named Roberts to replace him. The president then turned to his Texas friend and White House counsel, Harriet Miers. When she withdrew for a host of reasons, Bush finally settled on Alito.
With Justice Alito making headlines after his leaked draft opinion appears poised to overturn the 1973 Roe v. Wade precedent that established a right to abortion, it is an intriguing exercise in alternative history to examine his circuitous route to the nation’s highest court. What if Miers had taken O’Connor’s swing seat in 2006 instead of Alito? Would the Supreme Court have suffered the recent damaging breach of its vaunted confidentiality that threatens to upend Americans’ trust in the “Third Branch”? Would Roe’s historic precedent even be at risk?
The University of Virginia’s Miller Center conducted interviews with President Bush’s closest advisers, including Miers, Karl Rove, Alberto Gonzales and Ed Gillespie, which reveal how close the court might have come to avoiding the situation it now faces.
In 2005, Vice President Dick Cheney chaired a committee to vet and meet candidates for O’Connor’s position when she announced that she would leave the bench to care for her ailing husband once the Senate confirmed her successor. Still stinging from the Democratic Senate’s rejection of Robert Bork for another swing seat (vacated by Justice Lewis F. Powell Jr. in 1987), Republicans, who now controlled the Senate and the White House, were elated over O’Connor’s announcement. Finally, conservatives could glimpse the promised land where her moderate jurisprudence would be replaced by a reliable conservative vote.
Cheney’s committee recommended that the president interview five federal appellate court judges: Roberts, Alito, J. Harvie Wilkinson III, Michael Luttig and Edith Clement. No matter how hard the president tried to put Alito at ease, the introverted judge couldn’t mask his jitters. He literally quaked when nervous, Rove remembered. In contrast, Roberts — who is as personable as he is brilliant — impressed the president with his confidence tempered by good humor. Bush selected Roberts for O’Connor’s seat but, before his Senate confirmation hearings began, Rehnquist succumbed to cancer. Gillespie and Miers recalled that President Bush almost immediately settled on Roberts to fill the chief justice’s position.
Back to the drawing board went the president to replace O’Connor. Bush’s advisers, including Miers, were stunned when Bush selected her. Their long friendship, Texas ties and mutual respect, along with her gender, made her seem the perfect choice to take the “women’s seat” established by Reagan in 1981. Gillespie, tasked with shepherding Supreme Court nominations through the Senate, worried that Democrats would cry, “Cronyism!” Instead, he underestimated Republicans’ backlash against Miers, deemed too moderate by those who wanted to flip O’Connor’s seat to a predictable conservative vote.
Miers gamely tried to maneuver the courtesy calls with senators, but her lack of judicial and constitutional law experience, along with education credentials earned far from the Ivy League, made the process a tough slog. “I think, how unfair is this, that because she didn’t go to Harvard or Yale or Princeton or Columbia that she is somehow unworthy of the high court,” Rove reflected. “She was a major partner of a major Texas law firm, first bar president, brilliant lawyer — but having said all that, we should have considered the idea more thoughtfully.”
One item in her paper trail especially riled Republicans: she had contributed to Al Gore’s 1988 presidential campaign and the Democratic National Committee. “We ill-served the president,” Rove acknowledged. The nomination “caught our allies by surprise… . We didn’t have time to sell it to our natural outside allies,” such as the conservative Federalist Society.
“So, it just got to the point where it was pretty clear that the right thing to do was to step down so we could get on to Plan B,” said Miers. “I had knowledge that if I withdrew, I was going to continue on as [White House] counsel, so I decided and did. I called the president and told him I felt like it was time to step down.” A little more than three weeks after announcing Miers’s nomination, the Bush administration pulled the plug.
According to Rove, Miers argued that the president could not “afford this kind of expenditure of political capital in a cause that may fail. The damage will be greater if we push it through and lose, and there will still be greater damage if we push it through and win, because we will have expended a precious commodity that is more difficult now in the second term to re-create, and there are other good choices.”
Waiting in the wings was Samuel Alito. Now his introversion and anxiety seemed less consequential to the president and his advisers. Moreover, 15 years as a brilliant conservative voice on the U.S. Third Circuit Court of Appeals, along with Princeton and Yale degrees, trumped gender as a consideration in replacing the first woman justice. Alito’s clear ideology — he was sometimes called “Scalito” for his similarities to conservative Justice Antonin Scalia — and stellar credentials immediately distinguished him from Miers. His Catholic affiliation and dissenting vote on the Third Circuit to uphold limits on abortion in a Pennsylvania case also assured conservatives that he was the perfect replacement for O’Connor who, when the case arrived at the Supreme Court in 1992, had led a majority to uphold Roe.
The Senate voted 52-48 to confirm Alito on Jan. 31, 2006. Departing from O’Connor’s “pro-choice” posture and support of affirmative action, Alito has decided oppositely from his predecessor, flipping her swing seat to a steadfastly conservative vote, just as Bush and his advisers hoped.
Alternative histories can’t change the present, but they can offer fascinating “what ifs.” Had Harriet Miers taken O’Connor’s seat, as George Bush initially intended, she undoubtedly would have provided a more moderate voice on the court than Alito, perhaps including on abortion. It’s possible that the “leak heard ’round the world” never would have occurred, the court’s image would remain unblemished, and Roe might have survived — at least for the near future.
Barbara A. Perry is Presidential Studies director, Gerald L. Baliles Professor, and Presidential Oral History Program co-chair at the University of Virginia’s Miller Center. She is the author of “The Priestly Tribe: The Supreme Court’s Image in the American Mind.” Follow her on Twitter @BarbaraPerryUVA.