Dick Cheney and the U.S. Supreme Court
He shaped the high court's current composition
By Barbara A. Perry
Dick Cheney’s impact on American life extends far beyond his role in the War on Terror, a chapter with which he’ll be forever linked. It even transcends his remarkable role in nominating himself as vice presidential running mate for George W. Bush in the 2000 election.
Indeed, Cheney’s most enduring impact might be in shaping the current composition of the Supreme Court, when he led the search committee that supported John Roberts’s selection by Bush 43 as chief justice and the choice of Samuel Alito as an associate justice.
As Bush’s vice president, Cheney, who died November 3, convened Attorney General Alberto Gonzales, White House Counsel Harriet Miers, and senior presidential adviser Karl Rove to discuss the possible replacement of Chief Justice Willam Rehnquist, suffering from thyroid cancer in 2004-05. Yet it was Justice Sandra Day O’Connor who unexpectedly announced her retirement in July 2005.
Miers gathered the Cheney committee at the White House to meet with the president and discuss the selection process. Bush dismissed all but the vice president and Gonzales to tell the latter, whom he had named to the Texas Supreme Court while Texas governor, that he would not be the nominee for O’Connor’s seat. We don’t know precisely what Cheney’s impact was on the president’s decision to rule out Gonzales, but the Bush 43 presidential oral history project’s interviews with the Miller Center confirm that Cheney would often stay behind in White House meetings and become the last voice the president heard on decisions.
After preliminary interviews with potential appointees, Cheney’s group forwarded five names to the White House: Roberts, Alito, and three additional federal appellate judges, J. Harvie Wilkinson III, J. Michael Luttig, and Edith Clement. Roberts had the inside track as a Reagan administration alumnus, with an impeccable educational record (Harvard undergraduate and law degrees), Supreme Court clerkship under Rehnquist and star advocate at the tribunal, supporter of the unitary executive theory, and brief experience on the D.C. circuit bench. Bush felt an easy connection to him in their White House interview and gave Roberts the nod.
Before his confirmation hearings even started, however, his mentor, Chief Justice Rehnquist, died. Cheney’s vetting committee pivoted. “The immediate shift was to make Judge Roberts the nominee for chief justice,” Miers recalled in her Miller Center interview. His confirmation sailed through the Republican Senate, and he filled the SCOTUS bench’s center seat on the first Monday in October 2005, where he remains two decades later, presiding over an increasingly rightward shift in the court’s jurisprudence.
O’Connor’s position still had to be filled, and Bush took an uncharacteristic step outside his preferred selection process of relying on the Cheney committee. Instead, the president made a unilateral decision to nominate one of the committee’s members, his friend Harriet Miers. Gonzales remembered in discussions with the Miller Center that Miers had “never appeared” on the Cheney committee’s list of potential nominees.
Bush’s decision was an unforced error. Miers had done well as a Texas lawyer and head of the state’s bar association, but she simply lacked the usual credentials of a Supreme Court justice. She couldn’t master constitutional precedents quickly enough to impress senators in her courtesy calls, and Republicans believed she might not be a reliable judicial restraintist. Could she turn out to be another David Souter, thought by Bush’s father to be a conservative, only to vote with liberal justices in high-profile cases?
Finally, Miers withdrew her name from contention, and the Cheney committee suggested a nominee, Judge Alito, whom they had initially interviewed for the O’Connor vacancy. An introvert, Alito literally quaked with anxiety in his initial White House conversation with Bush. But his Ivy League education, fifteen-year service on the 3rd circuit, Reagan administration experience, lengthy conservative judicial record, and support of paramount executive authority made him the perfect choice for a second conservative Bush nominee. After a failed filibuster mounted by Senate Democrats, Alito survived a close confirmation vote and arrived at the Court in late January 2006.
Bush and Cheney must have been pleased to see these two court members support their conservative agenda: voiding campaign finance regulations, striking down school busing for racial diversity, limiting the Voting Rights Act, expanding freedom of religion, cancelling affirmative action in college admissions, and ending the federal right to abortion access.
Cheney chose himself when he chaired the committee to select Bush’s running mate in 2000. Equaling, or perhaps surpassing, that impact was the influence he wielded over achieving his and the president’s goals for reversing many of the court’s liberal precedents. This too will be part of his vast legacy from decades of political service.
Barbara A. Perry is J. Wilson Newman Professor of Governance at UVA’s Miller Center, where she co-chairs the Presidential Oral History Program
Cheney did a lot more than help shape the Supreme Court. I have been astonished by the many articles I have read pointing out Cheney’s accomplishments over his long career, things I never knew about or did not recognize their importance at the time. Rest in peace, Dick Cheney, mission accomplished.