The Confirmation (34 page)

“We'll win, Mr. President,” said Jay.

“We better,” said Long. “We need to put Sal in his place.”

“I have one request, sir. After we roll Stanley and Penneymounter, let me at Birch,” said Jay, smiling. “I want a pound of that guy's flesh.”

Long turned to Jay, eyes twinkling. “Sorry, but he's all mine.”

They enjoyed a good laugh at Birch's expense. The battle was joined, and the Long White House was not about to yield. The political cognoscenti demanded that Long cut a deal with Stanley and the Democrats and put forward a nominee who would be easily confirmed. But Long was not buying. It was what Jay admired most about Long: when everyone else was ready to throw in the towel, Long doubled down. Jay hoped that the president's sunny disposition would be enough as they entered a new and dangerous phase in what had become an all-out war for control of the Supreme Court.

JOE PENNEYMOUNTER WALKED THROUGH the reception area in the Senate Majority Leader's suite of offices like a peacock in full feather, blithely ignoring the tourists who were milling around like puritans in Babylon. Two attractive, young receptionists worked incessantly jangling phones, glancing up to return Penneymounter's easy smile. Moving through the reception room with its large marble fireplace, early Federalist period furniture, large oriental rug, and sweeping view of the Mall, Penneymounter stepped into the private office of Sal Stanley without knocking. Stanley sat alone in a large overstuffed chair, brow furrowed, reading glasses resting on the end of his nose, studying what appeared to be a staff memo. Portraits of Stanley's predecessors, Lyndon Johnson, Everett Dirksen, and George Mitchell, hung on the wall, staring down like celestial witnesses from a bygone era. As usual, Stanley had the thermostat set to the temperature of a meat locker.

“So, what's the word?” asked Stanley, snapping off his reading glasses.

“Did you catch Birch's news conference?” replied Penneymounter.

“No, but I heard about it. What did he say?”

“He broke Long's jaw.” He let out a little-boy giggle. Penneymounter's body man, who usually blended in like a piece of furniture, tut-tutted in low wheezes, his shoulders rising and falling, his skull undulating like a bobble-head doll.

“It was tastier than a warm cinnamon bun,” said Stanley. “I had my staff Tivo it! I'm going to dub in a laugh track.”

Penneymounter cackled with laughter. Then he suddenly turned serious. “We got lucky with Birch. He would have been hard to stop.”

“Impossible,” agreed Stanley. “Long's no idiot. It was a good idea, but Bob underestimated Birch's presidential ambitions. We dodged a bullet.”

“Long's imploding!” exclaimed Penneymounter, suck-up juices flowing.

“Just amazing,” said Stanley. “So what's next?”

“From what I hear, it's back to the drawing board,” reported Penneymounter. “They passed over some good candidates for Majette and Birch. They're going back to that short list.”

“This empowers Golden and the far right,” said Stanley.

“No question,” agreed Penneymounter. “Golden's people were the ones who leaked Birch's name. They deliberately sabotaged him.”

“Really!?” exclaimed Stanley. “Wow. The guy's got a rogue attorney general fragging his Supreme Court nominee. He can't control his own people.”

“There's just one thing that concerns me going forward,” said Penneymounter.

“What's that?”

“Jay Noble. He's smart and tough and mean.”

“How well I know,” sighed Stanley. “I despise that little weasel.”

“Until now the White House resembled a soccer team of twelve-year-olds all trying to kick the ball at once. That's going to change with Jay in charge of Supreme Court strategy.”

“Stanley rose from his chair, eyes narrowed to slits, tapping Penneymounter's chest with his index finger. He lowered his face until it was inches from Penneymounter's nose. “Make sure the next nominee ends up like Majette and Birch,” he said, his voice lowered to a whisper, the smell of coffee breath pungent. “I think we've got them on the ropes.”

“We knocked two out of the box without a hearing. Just wait until one survives long enough for me to
really
get my hands on them,” said Penneymounter. “By the time I get done, Bob Long's going to wish he'd never taken you on.”

A broad smile spread across Stanley's face. “My official position is this is a matter for the Judiciary Committee, and I have no involvement,” he said. “You know what to do.”

Penneymounter nodded and turned to leave, turning the knob on the giant oak door and exiting through the formal reception area. His body man trailed him, shoes shuffling on the marble floor, eyes darting, sweat beading on his forehead. Penneymounter paused at the receptionist desk and introduced himself to the two attractive female receptionists, asking where they were from and where they were living in DC.

TWENTY-SEVEN

Judge Marco Diaz sat in his private chambers in the E. Barrett Prettyman U.S. Courthouse on Constitutional Avenue, two blocks from the Capitol, watching Mike Birch's news conference on television. He could not believe Long had offered Birch the seat, much less that Birch had snubbed him. The entire scenario was surreal. Meanwhile Diaz sat helplessly waiting for the call that never came. After Peter Corbin Franklin's stroke, Diaz filled out the Justice Department's extensive questionnaire, met with Golden and his team at DOJ, then sat down with Phil Battaglia at the White House. Later he met with Long in the Oval Office. Then: deafening silence.

Just as he gave up all hope, the phone on the credenza rang. It was Phil Battalgia.

“Marco, can you come over here first thing tomorrow morning?” he asked in an officious voice, the request sounding more like an order. “The president would like to see you.”

A pregnant pause followed. After watching the baton pass twice, Diaz jettisoned his ambition to serve on the Supreme Court. Ironically, Yolanda Majette's run through the confirmation cauldron left him relieved . . . at least he had avoided her fate. But now his ambition returned with a vengeance.

“Phil, I'd be honored,” Diaz heard himself say, his heart pounding like a jackhammer. “What time do you want me there?”

“Eight sharp. We'll send a car to pick you up and bring you in a back way. Don't tell anyone you're coming.”

“Got it.”

“That includes your friends, colleagues, personal assistant. Not even your wife.”

Diaz gulped.
This is beginning to sound like the real deal,
he thought. He felt perspiration spreading on his palms. Flop sweat began to form under his hairline. Items on his desk came into clearer focus, like he had taken an upper. “Okay,” he said. “See you in the morning.”

As he hung up the phone, Diaz wondered if he was being set up for another fall. He gamely tried to keep his emotions in check, but his stomach did somersaults. The only thing worse than being passed over again was being selected. If that happened, Diaz knew his world would be turned upside down.

“THE FIRST THING WE need to do is shoot all the lawyers.”

Everyone around the table enjoyed a good laugh except Phil Battaglia. It was 7:45 a.m. and Jay was halfway through the morning senior staff meeting in the main West Wing conference room, joined by Charlie Hector, Battaglia, Lisa Robinson, political director David Thomas, and a handful of others. Across the alleyway, Marco Diaz was secretly ferried to the Treasury Department building and was at that very moment being escorted by an aide through an underground alley connected to the White House complex for his final meeting with the president. Among the senior staff only Battaglia and Hector knew about the meeting.

“No offense, Phil,” Jay said with a wink.

“None taken,” said Battaglia.

“We've been acting as if the confirmation of a Supreme Court justice is some high-minded exercise in constitutional prerogatives,” Jay continued. “This isn't filing a brief with some court. It's a knife fight!”

Lisa visibly flinched as Jay's raised voice bounced off the walls.

“That may have been what the Founders intended, but they also wanted an electoral college of wise men to elect the president . . . and we know better than anyone that doesn't happen, don't we?” He glanced around the table with a mirthful expression as they all chuckled at the irony. “This is a campaign, folks. We need to start acting like it.” Jay dropped his voice down to conversation level, inflecting the words with an almost musical intonation. “We need a lean, mean political machine utilizing the technology of a campaign. That means a war room, rapid response capability, messaging team, paid media, surrogates, and net roots.”

“Now we're talking,” said David Thomas, always up for a fight. His cherubic face, velvety brown eyes, and chestnut hair belied the scars he earned in battle. “That's how we won the vote in the House during the presidential campaign. We targeted the key delegations and swing members and got our supporters to deluge them with calls, e-mails, and visits.”

“Exactly!” exclaimed Jay. “We need to go back to campaign mode.”

“I buy into the premise of the permanent campaign,” offered Lisa. “But it's more like William McKinley running a front-porch campaign in 1896.”

“Historical analogy alert!” joked Thomas.

“I'm not sure that's the case anymore,” Jay replied.

“What do you mean?” asked Hector.

“We should get the nominee out there preemptively, sit them down with a few broadcast and print interviewers who are tough but fair. Almost like rolling out a veep pick.”

Battaglia looked as if someone hit him with a baseball bat. He shook his head back and forth, his fleshy jowls and double chin shaking like Jell-O. “Surely you jest. That would be a huge mistake.
Huge
,” he said, mouth agape.

“Why?” asked Jay pointedly. “Majette took a bullet in the head from a snub-nosed revolver and never had the chance to defend herself. You think Pro-Choice PAC and the left-wing bloggers aren't going to do the exact same thing to the next nominee?” He looked around the table for allies. Other than Thomas, there were none.

“Interviews before the Judiciary Committee hearing will backfire,” insisted Battaglia. “The nominee will be asked how they would rule on specific cases. Abortion, same-sex marriage, the Wildfire antitrust case, affirmative action, the works. If they dodge the question, they look evasive; if they answer, they prejudge a case.”

Jay threw his hands up. “Phil, the nominee's going to be asked those questions anyway when they go before Judiciary . . .”

“And the Senate has an advice and consent function under the Constitution,” fired back Battaglia, his face reddening. “If we go over the head of the Senate, the members of the Judiciary Committee on both sides of the aisle will eat the nominee alive.”

“Who makes these rules?” asked Thomas. He had a law degree from Georgetown and could hold his own with Battaglia. “No Supreme Court nominee even appeared before the committee until the twentieth century. Now we have five days of hearings. It's search and destroy. They hit us; we can't hit back. Why don't we make some rules of our own.”

“He who makes the rules, wins,” said Jay, tapping his pen on his legal pad.

“You won't find a qualified nominee worth their salt who's willing to go out there and sell themselves on television in order to be confirmed,” said Phil.

“Do they want to be on the Supreme Court or not?” asked Jay.

“Not if they have to sell themselves like a box of soap.”

“Darn, then maybe I should resign now,” said Jay, his lips curled into a sardonic smile. Everyone broke up. It eased the tension in the room.

“I'm not yet entirely convinced Jay's right,” said Hector, who had hung back to act as the referee, as was his usual style at meetings. “We don't want to reduce the nominee to a city council candidate.” He rested his chin on his fingers. “But I
do
think we need to quit playing defense and get on offense. That was our big mistake with Majette.”

“The ABA rates federal judicial nominees,” said Thomas. “Bush 43 came into office and said he was not submitting his nominees to the ABA. Boom! Just like that.” He snapped his fingers. “That was the end of the ABA. My point is: the rules change, and we need to be the one changing them.”

“The U.S. Senate is not the ABA,” said Battaglia, scowling.

“I like the idea of being more proactive with earned media,” said Lisa, joining in. “But I get indigestion about putting a Supreme Court nominee on
Nightline
or
60 Minutes.
When someone does that, they're usually dead. John Tower and Lani Guinier, call your office.”

Jay shot Lisa a look of disapproval. Lisa just stared back, blue eyes unblinking. She was not backing down.

“Lisa, that's when nominees didn't fight back,” said Jay. “I'm talking about pro-actively getting your message out before Penneymounter defines the nominee.”