White House Contacted Alito Before Miers' Withdrawal

Jan. 24, 2007 — -- This story is an abridged excerpt from Jan Crawford Greenburg's new book: "Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court and America's Future."

Sam Alito never considered the possibility that Harriet Miers would withdraw from her nomination by President Bush to the Supreme Court.

Alito had absorbed the disappointment of being passed over twice for a seat on the Supreme Court after several interviews with the Bush administration -- and he was getting on with his life.

For the past 15 years, he had been writing opinions as a federal appeals court judge, and he had come to accept the fact that he would spend the rest of his career in the same office.

But then in late October 2005 he got a call from the White House. "Are you still interested in a Supreme Court nomination?" asked Bill Kelley, White House deputy counsel.

For a split second, Alito was too stunned to speak.

As far as anyone else was concerned, the White House was still firmly behind Miers' nomination. But secretly, Bush was looking at Alito once again.

"Yes," Alito told Kelley, the surprise registering in his voice. Alito is a quiet man, but he answered emphatically. He hung up the phone and called his wife, Martha-Ann. No one else was to know about the call from Kelley.

At the White House, the fight for Miers was in trouble. While White House staffers delivered to the Senate Miers' second attempt to answer her questionnaire from the Judiciary Committee, behind-the-scenes advisers had begun formulating an exit strategy.

The next morning, Miers bowed out.

Later that day, White House Chief of Staff Andy Card called Sam Alito at home. Card got Alito's daughter, Laura, instead. Laura, then a senior in high school, gave Card her father's work number, hung up, and then rushed back to the computer and sent her brother, Philip, an instant message.

The only problem was that she couldn't remember Card's name. Philip had to guess which adviser from the White House had called. He began listing the names of possibilities to his sister until he landed on Card. "That's it," Laura wrote.

Alito had been on the White House radar for some time. Well before there were any changes announced at the court, Bush's judicial team had been interviewing possible Supreme Court replacements -- advisers fully expected Rehnquist to retire.

In the spring of 2005, they invited Alito to Washington and interviewed him at the vice president's mansion. Vice President Dick Cheney wondered about Alito's views on the use of foreign law, which was then a controversial issue that had divided the court's liberal and conservative justices.