White House Contacted Alito Before Miers' Withdrawal

ByJAN CRAWFORD GREENBURG

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.

"I don't think that you can interpret the Constitution by taking sort of a poll of the countries of the world and the constitutional courts of the world," Alito told the group.

Karl Rove was interested in Alito's nickname: "What do you think about people referring to you as 'Scalito'?" Alito had gotten the nickname several years earlier when first mentioned as a possible Supreme Court pick.

Alito didn't like it. "I don't think it's appropriate. It's based mostly on ethnicity," he said to Rove. "If they thought I was so conservative, why didn't they compare me to Rehnquist or Thomas? Why did they choose to compare me to Scalia?"

Then, he provided an impromptu language lesson. "If they knew Italian, they'd realize 'ito' is not an Italian diminutive, it's a Spanish diminutive," said Alito. "It should be 'Scalino.'" Rove and the others broke into laughter.

But Alito was ultimately passed over twice for vacancies on the Supreme Court.

And now, while the White House was publicly standing by Harriet Miers, Bush's closest advisers were privately preparing for her withdrawal.

In fact, Bill Kelley called Alito before Miers had even finished writing her letter of withdrawal to president Bush -- the day before the news was publicly announced.

Bill Kelley's call came like a flash of lighting and Alito hadn't even known the storm was brewing.

The day after Miers publicly withdrew, Bush called Alito about the job.

When Bush introduced Alito to the nation, he stressed Alito's "extraordinary breadth of experience," calling him "one of the most accomplished and respected judges in America."

He talked about Alito's academic achievements at Princeton and Yale and his career as an appellate lawyer, prosecutor and a judge. He said Alito had "shown a mastery of the law" over the years and had participated in thousands of appeals and hundreds of decisions.

In short, Sam Alito was no Harriet Miers.

ABC News' Ariane de Vogue contributed to this report.

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