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A Silent Justice Speaks Out

September 30, 2007 11:04 PM

You can read my lengthy story based on more than seven hours of interviews with Justice Clarence Thomas over four days by clicking here.  I sat down with Justice Thomas at the Court,  at his home--where his wife Virginia also spoke on the record--and even followed the Justice and his wife to Nebraska two weeks ago for the unfortunate drubbing of the Cornhuskers (Thomas is a huge fan) by the USC Trojans.  On the record, he spoke in starkly candid terms about affirmative action, growing up in the segregated South, his confirmation battle, Anita Hill and most passionately, on the subject of race.  You can see excerpts from my interviews at starting at 12:01 a.m. EDT Monday by clicking here, and I'll have lengthy segments on Good Morning America and World News with Charles Gibson.  Then, Monday night, our most extensive television segments based on my interviews will appear on Nightline.  Over the next few days, I'll be posting what Justice Thomas told me about his views of the law, the Court and the Justice he most admires. So,watch this space.

September 30, 2007 | Permalink | User Comments (6) | TrackBack (0)

Justice Thomas Speaks Out

September 28, 2007 9:44 AM

The long-awaited memoirs of Justice Clarence Thomas will be released Monday, and, for those of you who haven’t seen posts by Mark Obbie, Tony Mauro and Howard Bashman,  I’ve done a series of wide-ranging interviews with him in several different locations (and states), as well as an extensive interview with his wife, Virginia. But I can’t say anything more than that until Sunday night.

So…until then, all I can say (having studied the confidentiality agreement, its pretty harsh penalties and wanting to stay in good standing with my bosses and the New York bar) is to be on the lookout Sunday night for my substantial dot com piece, which will be posted in several parts on ABCNEWS.com. (You know the old saying: You can take the journalist out of print, but you can’t take print out of journalist…)

Then, starting Monday morning with Good Morning America, my pieces on Justice Thomas will begin airing on ABC News. We will have a full report on all our platforms: Good Morning America, World News Tonight and a series of lengthy and revealing segments on Nightline, which of course is the perfect place for a closer look at one the most complex, compelling, maligned and misunderstood figures in modern history.

I’ve covered the Court and Justice Thomas for 13 years now, and I can tell you this is something you will not, under any circumstances, want to miss. If you can’t catch them all, Tivo them (I’ll have to get my kids to do it, but surely you guys are more technologically adept). I also will be blogging on this throughout the weeks to come. Thomas has much to say, and there will be much to discuss.

September 28, 2007 | Permalink | User Comments (22) | TrackBack (0)

President Taps New Attorney General

September 16, 2007 7:22 PM

President Bush has decided to nominate former federal Judge Michael Mukasey as his next attorney general. Mukasey is in the White House and has spent the afternoon meeting with conservative leaders.

The decision to nominate Mukasey was presented to them as "being made," and the meetings, which included White House Counsel Fred Fielding, were to introduce him to conservatives, including Ed Meese, Leonard Leo and Jay Sekulow. An announcement is expected tomorrow.

September 16, 2007 | Permalink | User Comments (3) | TrackBack (0)

Momentary Indecision

September 11, 2007 6:26 PM

Before we all anoint Ted Olson the nominee to be the next attorney general, it’s worth remembering that only President Bush has that power—and as of this afternoon, President Bush hasn’t decided who he will nominate. Yes, Olson is a leading candidate, as my sources told me yesterday. And he remains a leading candidate.

But sources today emphasize that the situation in the White House is fluid, and it’s too soon to rule out two other contenders: former federal Judge Michael Mukasey and former deputy attorney general Larry Thompson.

In making the decision, Bush and his advisers are grappling with a number of considerations, including, in no particular order, the following: DOJ experience; strong Republican support and Democratic respect; ease of confirmation; ability to rally morale at DOJ; ability to testify forcefully on the Hill and persuasively present the President’s policies; and familiarity with national security issues.

Olson, the former solicitor general, has almost all those qualities--but he would face the toughest confirmation fight. And some in the White House strongly believe that Bush does not need the distraction of a drawn-out battle over his next attorney general in the midst of continuing conflict over his Iraq policy.

Enter Mukasey. He has deep experience as a federal judge and former prosecutor. He’s presided over terror trials. He is respected by Republicans and Democrats. He wouldn’t be a fight. But he lacks D.C. experience, managerial experience, Hill experience—and he doesn’t know George Bush particularly well.

Of all the prospects, then, Thompson could best fill the bill—but he would be enormously hard-pressed to take the job and has indicated he does not want it. He’s now the general counsel of PepsiCo, and he would have to quit—to take a post for a 15-month period. And he couldn’t just head back to PepsiCo in 2008, because the company would need to hire someone to replace him.

Which takes us back where we started: Ted Olson, a leading candidate. But others—Mukasey, Thompson, George Terwilliger--remain in the complicated attorney general mix. And the right formula, sources say, hasn’t been finalized.

September 11, 2007 | Permalink | User Comments (4) | TrackBack (0)

Considered In or Out?

September 10, 2007 6:21 PM

The White House could announce as early as Wednesday its nominee to replace Attorney General Alberto Gonzales, and former U.S. Solicitor General Theodore Olson has emerged as a leading candidate—despite initial concerns in the administration that he could face a tough confirmation hearing, according to sources close to the process.

Olson, a highly regarded Washington D.C. lawyer, has broad support inside the administration because of his deep experience in the Justice Department in two different presidential administrations. In addition to serving as solicitor general during President Bush’s first term, Olson headed the Office of Legal Counsel during the Reagan Administration.

Olson argued on behalf of George W. Bush in the Supreme Court in Bush v. Gore and is considered one of the nation’s top Supreme Court lawyers. He was serving as solicitor general when his wife, noted commentator Barbara Olson, was killed in the Sept. 11 terrorist attacks. She was a passenger on the hijacked American Airlines flight that crashed into the Pentagon, killing her and 58 other passengers and crew members.

On the administration’s short list since Gonzales first disclosed he would be resigning, Olson has all the right credentials. But some officials, including White House Chief of Staff Josh Bolten, had been concerned that he would face stiff opposition from Senate Democrats. Olson was confirmed solicitor general by a razor-thin 51-47 vote in 2001, when Republicans ran the Senate.

Bolten contacted Olson the weekend before Gonzales’ resignation to see if he would be considered for the post, sources said. Bolten also spoke with George Terwilliger, a former federal prosecutor who was deputy attorney general in the George H.W. Bush administration, as well as Laurence Silberman, a senior judge on the U.S. Court of Appeals for the D.C. Circuit.

Olson and Terwilliger said they were willing to be considered for the position, according to sources close to the process, but Silberman told Bolten he was not. Silberman, a deputy attorney general for Presidents Nixon and Ford, recently co-chaired the Commission on Intelligence Capabilities, which examined the background evidence cited for the invasion of Iraq. He said firmly that he did not want to leave the federal bench.

Olson or Terwilliger would have to leave prominent law practices to head the Justice Department, but both could return to their law firms at the end of the administration. Silberman would have to leave the bench permanently if he were nominated, and he told Bolten that he was not ready to do that, sources said.

Another potential nominee, former Deputy Attorney General Larry Thompson, is in a situation similar to that of Silberman: He would have to quit his position as general counsel of Pepsico and would be unable to return—the company could not leave that position open in his absence. Thompson, widely respected by colleagues in the Justice Department, also has indicated he did not want to be considered for the job.

Others under consideration include retired federal judge Michael Mukasey, a former federal prosecutor nominated to the bench by President Reagan in 1987. As the chief judge of the southern district of New York, he presided over several terror trials, including the conspiracy trial of Sheikh Omar Abdel Rahman, the convicted mastermind of the first World Trade Center bombing in 1993. Mukasey left the bench last year and is now a partner in a New York law firm. While highly regarded, he is seen by some as lacking in managerial experience needed to take over the beleaguered Department.

In deciding between Olson and Terwilliger, White House officials are weighing several factors. Olson is considered the stronger and more experienced candidate, but concerns that his confirmation hearing could turn into a partisan brawl have not gone away, sources said.

That’s the strike against Olson: He’s a bigger fight.

Olson’s supporters have argued to Bolten and others that he would actually be less controversial now than at his 2001 hearings, having been well regarded during his stint as solicitor general. Terwilliger’s supporters counter that he’s equally capable--and more easily confirmable in a contentious Senate.

President Bush’s choice could send a signal: How much fight does he have left—or feel like expending—in the remaining 15 months of his administration? Stay tuned.

September 10, 2007 | Permalink | User Comments (19) | TrackBack (0)

A Labor Fools' Day Story

September 03, 2007 12:48 PM

Today is Labor Day, and not April 1st, but I have to say I thought someone was trying to play a joke on all of us when I saw the front page of this morning’s Washington Post. Leading the paper is a story about journalist Robert Draper’s new book, Dead Certain: The Presidency of George Bush, which apparently is an inside look at the controversies and dissension among Bush’s top advisers. But what the Post homed in on was this explosive nugget: It was John Roberts who suggested Harriet Miers to President Bush as a possible Supreme Court justice.

Now I don’t know anything about Draper’s book. I haven’t read it. The White House apparently opened its doors to him—he interviewed President Bush, Vice President Cheney, Karl Rove and a Cabinet roomful of other people. Of that bunch, I don’t know who told him that Roberts supposedly “suggested” Miers to Bush as a replacement for Sandra Day O’Connor. I don’t know what his source’s motivation was, other than to dodge blame for one of the most egregious failures of executive decision-making in Bush’s second term.

But I do know one thing. John Roberts did not suggest Harriet Miers to President Bush as a nominee for the Supreme Court. This is a fact. It never happened.

Roberts himself said so last night through Court spokeswoman Kathy Arberg. “The account is not true,” Arberg told the Post after consulting with Roberts. “The Chief Justice did not suggest Harriet Miers to the President.”

There is a story there, but it’s not the one Draper has been told. Perhaps that’s because it doesn’t allow the White House to point the finger at anyone else for Bush’s disastrous decision to nominate Miers—a decision that badly hurt the President with his conservative base, allowed Democrats to unfairly portray Sam Alito as somehow beholden to those interests and, perhaps worst of all, made a laughingstock out of a smart woman who—but for the nomination--would be seen today as an accomplished lawyer who’d served her country with dignity.

When I was writing my book, Supreme Conflict, I spent an enormous amount of time puzzling over the Miers nomination. It made no sense. How could a President who’d just nominated perhaps the most highly qualified lawyer in the United States immediately turn around and tap for the next vacancy his loyal adviser, a woman who—despite a career of “firsts” as a lawyer and bar association leader—was essentially a mid-level law firm administrator totally lacking the background for the High Court? Bush had said he wanted to nominate someone outside the “judicial monastery,” and certainly the Court could use an experienced lawyer who would bring a real-world perspective. But Harriet Miers was not that person. Her experience dealing with complex commercial litigation was embarrassingly inadequate—as the lawyers in the White House painfully realized when she filled out her Senate questionnaire and was asked to list the top cases she’d handled.

Conservatives revolted, and understandably so. Here was Bush’s chance to knock it out of the park: He was in the rare position of actually being able to change the direction of the Court. He was replacing a moderate with a conservative, and Republicans were in control of the Senate. Conservatives thought he understood the stakes and assumed he’d nominate another legal luminary like Roberts, someone who could more than hold his or her own with the intellectual heavyweights on the Left like Stephen Breyer.

His decision to nominate Miers instead was such a disaster that some conspiracy theorists began suggesting that perhaps she was a head-fake: Bush nominated her knowing she’d never make it, just so he could sneak Alito on as he’d wanted from the beginning. As tantalizing as that sounded, it was immediately clear the conspiracy theorists gave the Bush White House way too much credit.

After tapping Roberts for Chief, Bush was determined to nominate a woman or minority to replace O’Connor. Other contenders had come up short. Some were too old. Others had ethics issues. Still others were not considered reliably conservative. And the ones he really liked—his own nominees to the appeals courts like Miguel Estrada, Priscilla Owen, Janice Rogers Brown, Carolyn Kuhl—all had been blocked by Senate Democrats. He’d thought about Miers long before he first nominated Roberts to replace O’Connor, and she wisely declined to be considered. But with contenders dropping out left and right, Bush thought of her again.

George Bush believed—because his advisers had told him so—that Miers was qualified for the Court. Just as importantly, he also believed—because he knew her—that Miers would not drift to the left like David Souter did. It’s impossible to overstate how much the last consideration drove Bush: His dad did not know Souter and relied on his closest advisers to vouch for the reclusive New Hampshire judge’s conservative views. But George H.W. Bush’s advisers—chief of staff John Sununu, primarily--had no idea what they were talking about, and Souter soon was showing himself to be almost as liberal as the justice he replaced, William Brennan. Bush was determined not to repeat what conservatives considered to be his father’s greatest blunder.

And here’s where Roberts comes in. In one of their meetings, Bush casually asked Roberts what he thought of Harriet. Roberts was politely noncommittal—which is perfectly in keeping with what any clear-thinking person would expect from a man as careful and smart as Roberts.

But since other people were in the room, that exchange got repeated, embellished and eventually twisted around. And when the Miers nomination started to implode, at least one White House adviser defensively said, “Well, even Roberts signed off on her.”

Not true. Roberts, a man of caution with a tremendous sense of propriety, did not strenuously object when Miers’ name came up—but he didn’t believe it was his place to do so. He certainly never endorsed her.

But like a game of telephone, the false rumor that Roberts “signed off on her” has now morphed into Roberts “suggested” her. Heck, maybe even the President believes it by now if he’s heard it repeated back to him by his advisers. But it didn’t happen.

And can we pause here for a moment? Even if Roberts—who by this point had not even taken the bench as Chief Justice—would do something so out of character as presumptuously suggesting a nominee to the President himself, does anyone really think he would have suggested Harriet Miers? John Roberts? The intellectual giant with a deep knowledge and understanding of Supreme Court history? Roberts, with his distinguished academic, legal and judicial record and his longstanding respect for the Supreme Court as an institution—an institution he would be leading? If he had been someone so presumptuous to make a recommendation for the Court to the President—unthinkable, by the way--wouldn’t he want someone more like himself—say a Carolyn Kuhl? Or a Maureen Mahoney?

This is where I think you hear someone saying “Labor Fools' Day!”

September 3, 2007 | Permalink | User Comments (9) | TrackBack (0)