What Happens Behind The Scenes Of Nominating A Supreme Court Justice?
ARI SHAPIRO, HOST:
We wanted to know what happens behind the scenes at the White House when there's a Supreme Court vacancy, so we've reached Boyden Gray. He was the top lawyer for President George H.W. Bush, and he was at the White House when Justices Clarence Thomas and David Souter were nominated to the court. Welcome to the program.
BOYDEN GRAY: Thank you very much for inviting me.
SHAPIRO: Begin by telling us what happens before there is a Supreme Court vacancy. Does the White House maintain a shortlist written down somewhere of possible nominees, or is it all just sort of in people's minds?
GRAY: No, I think there's a dossier, if you will, a file for a number of different possible candidates that has been researched with the Department of Justice. That varies from administration to administration just how much involvement the department has.
SHAPIRO: So a Supreme Court vacancy opens up. Somebody pulls out that file, and what happens then?
GRAY: Well, every single nomination is different. So you can't have any preconceived notions about exactly who you're going to recommend if you're staff or who the president's going to nominate. You can't be sure because every single nomination is different. I'll give you an example. Everyone, I think, the outside - I was working on the outside and sort of cheerleading and trying to help with the public relations effort, if you will. Most of us on the outside of the White House thought that Rehnquist would be the first to resign, not O'Connor.
SHAPIRO: Who's Chief Justice William Rehnquist - yeah.
GRAY: That's right. That's right. And it made a difference as to who you might pick to be the successor. So that was a surprise, and I - Karl Rove denied it to me. He said, oh, no, we weren't a bit surprised. But those of us on the outside were, and we had to scramble to sort of get our ducks in a row. And this...
SHAPIRO: Now, why did that matter when Supreme Court Justice Sandra Day O'Connor decided to retire before Chief Justice William Rehnquist? Why did that make a difference in the nomination to replace her? A vacancy's a vacancy, no?
GRAY: Yes, but she was a little more moderate than Chief Justice Rehnquist, and it just was a factor in how much running room the president has in replacing a justice. Now, at this stage, what you have is a debate about the shift in the balance of the court which is a much bigger issue than any difference in philosophy between Justices O'Connor and Rehnquist. But I'm just telling you that every nomination is different, and each circumstance is different. And a death in the last year, I think, is virtually unprecedented.
SHAPIRO: And how involved is the president in choosing the nominee? Is it delegated largely to staff, or is this deep involvement from the Oval Office?
GRAY: That, I think, depends on the president. But for President Bush, my boss, he was deeply involved in both selections, deeply involved.
SHAPIRO: I suppose we could assume that President Obama, having taught constitutional law, being very invested in this issue in general...
GRAY: I would think so. He knows as much or more than (laughter) most of his own staff, so he - I would think he'd be very involved.
SHAPIRO: And once the president has chosen who he's going to nominate, what does the role of the White House become at that point?
GRAY: Well, the White House then has to support the nomination in the Congress, and that means helping prepare the nominee for the hearings, which involves very intense work. And then it means making sure you have the votes - if it's a tight contest, that you have the votes to get the person confirmed. So the White House's roll almost doesn't even begin until the nomination is made. It's a funny sort of thing. I - as you can well imagine, the Thomas nomination was very, very fraught with all kinds of tension and stress. And it was a full-time job for me, even more than the preparation for President Bush to make the initial choice.
SHAPIRO: That's former White House Counsel Boyden Gray who now has his own law firm here in Washington, D.C. Thanks very much.
GRAY: My pleasure. Thank you.
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