Alberto Gonzales on the “set of predictors” the Bush Administration Used To Elevate Judges Roberts and Alito

May 30th, 2014

Alberto Gonzales, who has kept quite busy since re-entering legal academia as a Professor, and now Dean at the Belmont University College of Law, authored an interesting article in the William & Mary Bill of Rights Journal, titled “In Search of Justice: An Examination of the Appointments of John G. Roberts and Samuel A. Alito to the U.S. Supreme Court and Their Impact on American Jurisprudence.” Here is the abstract.

During 2005, President George W. Bush appointed Federal Circuit Court Judges John G. Roberts and Samuel A. Alito to the U.S. Supreme Court. These appointments were the culmination of years of examination of the work, character, and temperament of both men commencing during the 2000 presidential transition. Our evaluation included face-to-face interviews; an analysis of judicial opinions, speeches, and writings; and conversation with friends, colleagues, and court experts. Based on this work, a select group of Bush Administration officials developed a set of predictors that formed the basis of our recommendation to President Bush that he elevate Circuit Court Judges Roberts and Alito to the Supreme Court. This Article explains how Judges Roberts and Alito were evaluated, and our assessment of how they would perform on the Court. The Article then examines whether the Bush Administration correctly predicted how these two men would decide cases before the Court by reviewing some of their most significant opinions to date.

We begin with an explanation of the process used in developing our recommendation to the President followed by a thorough examination of the factors we weighed (such as political considerations and confirmation challenges). The Article includes a thorough, though certainly not exhaustive, review of the circuit court opinions of each man. This early body of work is then compared to their most recent work on the Supreme Court in certain key areas of the law. There is a remarkable, though not unexpected, consistency between Justices Roberts’s and Alito’s jurisprudence on the circuit courts and on the Supreme Court. Based on this comparison, the Article concludes that the Bush Administration successfully anticipated that Chief Justice Roberts and Justice Alito would decide cases using a consistent set of principles including judicial restraint, respect for precedent, and statutory interpretation based on plain language.

I’ll put the rest of this lengthy post below the fold.

What was GWB looking for? No Souters.

The President also made clear to me that he wanted to avoid surprises. He wanted reliable conservatives—individuals with a track record adhering to a conservative judicial philosophy. On more than one occasion, I heard him make reference to his father’s nomination of Justice David Souter.

And judicial conservatives:

Throughout President Bush’s first term, he and I had many conversations about judges and filling a Supreme Court vacancy. We had had similar conversations about Texas Supreme Court Justices when he was Texas Governor and I served as his General Counsel, but these White House discussions were far more serious and frequent. Most were informal, one-on-one conversations in the Oval Office. The  President was not a lawyer, so we spent some time discussing certain styles of judg- ing and, on a basic level, various principles of judging. I spoke with him about what he wanted in a nominee and probed how he expected judges to decide cases. I asked him whether he was willing to take on a tough confirmation fight. From time to time he would inquire about the names at the top of my list and why. Sometimes he would volunteer a name to me (confirming my suspicions that he received names from other sources) and ask for my views. President Bush was fairly consistent in his expecta- tions of his judicial appointees. Diversity was important, but a conservative judicial philosophy was most important. His willingness to take on a major confirmation fight varied depending on outside events or the President’s need to get congressional support for an important part of the President’s policy.

The process of vetting SCOTUS nominees began in 2001:

At the beginning of the Bush administration in 2001, I tasked Brett Kavanaugh, one of the Associate Counsels in the White House Counsel’s Office, to coordinate the initial formal vetting of potential Supreme Court nominees. The work began with a compilation of the names of men and women identified by the bar, media, friends, and colleagues as qualified and conservative in their views, or known to be Republican and conservative in their philosophy of judging. I directed that we cast a wide net and leave no stone unturned to find potential nominees. The vetting list, which initially numbered over one hundred, included current and former judges; current and former  members of Congress; current and former cabinet members, agency heads, law pro- fessors, and university administrators; as well as distinguished members of the bar. Each name was subjected to a preliminary vetting by lawyers in the Counsel’s Office and a select group of lawyers at the Justice Department.

Soon the list was narrowed down to fifty names, and then twenty names:

Some candidates had obvious confirmation challenges and were quickly elimi- nated from further consideration. Others, we concluded, were not ready or simply not qualified by virtue of experience or a background issue. Still others were disqualified because of writings, speeches, judicial opinions, public editorials, or statements incon- sistent with a conservative judicial philosophy. As a result of this preliminary vetting, our initial list was shortened to approximately fifty names. These individuals were then assigned to various lawyers in the Counsel’s Office and at the Department of Justice, who were asked to do a more in-depth due diligence review, and to prepare brief two-to-three page summaries. Because there were no Supreme Court vacancies during President Bush’s first term, we had ample time to vet candidates. Based on numerous discussions and our review of these brief two-to-three page summaries, we narrowed our list down to twenty names. The lawyers were again tasked to prepare more lengthy summaries— in some cases over fifty pages—of these individuals, including a biographical exami- nation, summaries of qualification and accomplishments, discussion of confirmation issues, review of speeches, other written materials, and anything else that spoke to or provided clues about that person’s philosophy of judging, including relevant legal or judicial opinions.

The White House learned of Justice O’Connor’s intent to step down “a few months” after February 2005.

In February 2005, I left the Counsel’s Office and was appointed as Attorney General. A few months later, we learned that Justice Sandra Day O’Connor intended to step down and the people chosen to make final recommendations to the President for O’Connor’s successor included Vice President Dick Cheney, Chief of Staff Andy Card, Senior Advisor Karl Rove, the new White House Counsel Harriet Miers and me—the Attorney General.

The short list had four candidates:

Fourth Circuit Judge Mike Luttig, Second Circuit Judge Samuel A. Alito, Fourth Circuit Judge J. Harvey Wilkinson III, and D.C. Circuit Judge John J. Roberts. Judges Luttig, Wilkinson, and Alito were vet- eran judges, respected and accomplished. It would surprise few serious Court watchers that we had decided to move forward and interview them. On the other hand, although he was a highly regarded appellate lawyer, I had not considered John Roberts as one of the early favorites. However, after his appointment to the D.C. Circuit, Judge Roberts’s performance confirmed that he deserved to be on our short list of candidates. In order to try to minimize publicity about who we were considering and to avoid leaks about the interviews in the weeks after the O’Connor announcement, each judge met secretly with our group of five for about forty-five minutes in the residence of the Vice President at the Naval Observatory.

Gonzales explains that he met with a select number of potential candidates, including John Roberts, on April 1, 2005:

In addition to my private conversations with the President, during my tenure as White House Counsel, and then later as Attorney General, I reviewed binders of in- formation, and considered a number of recommendations about potential candidates from various individuals and organizations. Sometimes, unsolicited recommendations were made by letter or email. Often I met with individuals or groups leaders to solicit their views. During this fact-gathering process, there emerged fairly quickly a consen- sus among legal experts, Court watchers, the media, and lawyers in my office regarding a select group of federal circuit court judges as the leading candidates. I anticipated the President would not only ask me about their judicial philosophy, but also my views of each of them as a person, as a judge, and as a potential nominee. So I made it a point to meet these judges and, time permitting, to get to know them. These meetings were informal and private. Some occurred in my West Wing office, but other meetings took place outside of the office. One such private meeting, now publicized,7 occurred at the Justice Department with D.C. Circuit Judge John Roberts in 2005, after I had be- come Attorney General. These private conversations helped me form an opinion of each of these candidates. I, in turn, would share my views with the President.

Slate covered Roberts’s interview schedule:

On May 3, he met with Vice President Dick Cheney; Andrew H. Card Jr., the White House chief of staff; Karl Rove, Bush’s chief political strategist; Harriet Miers, the White House legal counsel; Gonzales; and I. Lewis Libby, the vice president’s chief of staff. On May 23, Miers interviewed Judge Roberts again.

Because Gonzales was the only lawyer, other than Miers on the panel, he was tasked with asking the most questions. What most interested me about this article was the “set of predictors.” He identified five factors: qualifications, personal qualities, confirmability, intangibles and political considerations, and most importantly judicial philosophy.

On the second front, I suspect Gonzales may have misjudged JGR:

Second, I looked at the personal qualities of the candidates such as character, courage, and discipline. Does this person have the character to stand up to the un- imaginable scrutiny of the nomination process and the difficult questioning in a con- firmation hearing? Does he or she have the courage to do the right thing in applying the law, no matter how unpopular or contrary to the nominee’s personal biases and views? Is the person strong enough to withstand criticism of his or her decisions? Will the person be influenced by accusations—justified or not—of judicial activism? Does the nominee have the discipline to apply a consistent set of principles in deciding cases over a period of ten, twenty, or thirty years and not be seduced by the siren call of the legal elites in the bar and academia to do that which is popular or politically correct?

What were the intangibles? Diversity, age, and health.

For example, after the death of Chief Justice Rehnquist and the nomination of Judge Roberts to the Rehnquist vacancy, the President wanted to fill the O’Connor vacancy in 2005 with a qualified woman—thus the Harriet Miers nomination.8 I did not take into account geographic or educational diversity; however, I did take into account the nominee’s age. I looked for someone old enough to have the wisdom and maturity that comes from life’s experiences, but young enough to serve on the Court for thirty to forty years and impact the jurisprudence of our country. Consequently, I also considered the health of a potential nominee.

Based on these factors, Gonzales settled on Roberts and Alito. I guess we don’t talk about Miers (the above passage is the only reference to her failed nomination).

I did not think it appropriate to ask about a candidate’s personal or political views. Because we expected judges to set them aside, we considered these views irrelevant. Of course, to set aside personal and political views and rule according to the law is not always easy, especially on those cases of national interest and in times of crises. All judges will be tempted to abandon judicial philosophy on cases of personal importance to them. The good ones resist. Indeed, the good ones will apply a misguided law as it exists and trust democracy to fix that law. Applying all of these factors, I felt com- fortable recommending Judges Roberts and Alito to the President.

The rest of the analysis is based on inside info:

Some of the material in this Part is based on the work of White House and Department of Justice attorneys, or reflected in partial drafts of internal memorandums as well as the per- sonal notes of the author.

Roberts’s biggest holdup was not his lack of judicial experience, but potential memos he wrote in the Executive Branch.

The fact that he had a limited judicial record presented a political challenge to the President’s opponents because there was little paper trail to attack. Consequently, we in the White House anticipated Judge Roberts would be challenged for his work in the executive branch. We worried about Judge Roberts’s internal memos as a former executive branch official, and the possibility of an institutional fight over access to these docu- ments. Fortunately, after hurriedly reviewing available records at the National Archives and at the Reagan Presidential Library, we concluded there was little in those records to provide ammunition for the opposition.

Gonzales spends some time going through a number of the opinions that Circuit Judges Alito and Roberts wrote, as indications of how they would act as judges. I found this analysis quite light, and indicative of how subjective the process is.

More remarkable is how Gonzales characterizes the Chief’s opinino in NFIB:

It is not unusual, given the Chief Justice’s typically restraint-oriented view of the Commerce Clause, that he would lead the majority in invalidating a congressional attempt to use the clause as a vehicle for federal healthcare reform.220 His deference to other branches does have an outer limit, and this is particularly clear in relation to the Commerce Clause where his opinions indicate he is wary of abuse.221 The ruling in NFIB222 is notable in this regard for numerous reasons.223 For example, it is un- usual for the Chief Justice to construe a statute in a manner that obliges a ruling rather than avoids it.224 Other points of note include the rhetoric of Chief Justice Roberts’s Commerce Clause decision and his construction of the Medicaid expansion.225 While a number of these elements are surprising and even immoderate when taken alone, in context of the decision and its repercussions, the Chief Justice’s opinion can be argu- ably construed as the epitome of moderation and judicial restraint. 

In conclusion, Roberts and Alito “delivered as advertised.”

On balance, Chief Justice Roberts and Justice Alito have “delivered as advertised.” The Chief Justice has decided cases as an impartial umpire, exercising restraint and respect for the electoral branches of government. Justice Alito has continued his public service with distinction and consistency, adhering to a core set of principles. There have been few instances where these Justices have taken positions inconsistent with their usual pattern of judging. Over the course of a long career and hundreds of opinions, it is to be expected that even the most ardent fan of Roberts and Alito will be disappointed by a decision. However, it is my prediction that history will judge the appointment of these two men to the Supreme Court as one of the most shining and enduring legacies of President George W. Bush.

I saw Gonzales earlier this year at the swearing-in of Chief Justice Hecht and Justice Brown. Harriet Miers was also there. Texas party!