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Bush asks court nominees about excercise { July 21 2005 }

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July 21, 2005
An Interview by, Not With, the President

WASHINGTON, July 20 - When President Bush sat down in the White House residence last Thursday to interview a potential Supreme Court nominee, Judge J. Harvie Wilkinson III of the United States Court of Appeals for the Fourth Circuit, he asked him about the hardest decision he had ever made - and also how much he exercised.

"Well, I told him I ran three and a half miles a day," Judge Wilkinson recalled in a telephone interview on Wednesday. "And I said my doctor recommends a lot of cross-training, but I said I didn't want to do the elliptical and the bike and the treadmill." The president, Judge Wilkinson said, "took umbrage at that," and told his potential nominee that he should do the cross-training his doctor suggested.

"He thought I was well on my way to busting my knees," said Judge Wilkinson, 60. "He warned me of impending doom."

Judge Wilkinson's conversation with the president about exercise and other personal matters in an interview for a job on the highest court in the land was typical of how Mr. Bush went about picking his eventual nominee, Judge John G. Roberts, White House officials and Republicans said. Mr. Bush, they said, looked extensively into the backgrounds of the five finalists he interviewed, but in the end relied as much on chemistry and intuition as on policy and legal intellect.

"He likes to have the info, he likes to have the background, but he also is a field player," said Dan Bartlett, the counselor to the president, in a briefing to reporters on Tuesday night. "He likes to size people up himself, make his own judgment."

White House officials and Republicans said Mr. Bush, who prides himself on his instincts about people, had clicked with Judge Roberts and what a friend calls his Midwestern "regular guy" demeanor in an hourlong interview in the White House on Friday, the day after the president met in the same setting with Judge Wilkinson. But Mr. Bush was particularly impressed, Mr. Bartlett said, with the judge's "impeccable credentials" from Harvard College and Harvard Law School and his record of arguing 39 cases before the Supreme Court.

Equally important, Republicans close to the White House said, Mr. Bush knew that Judge Roberts was acceptable to conservatives but came with such a sterling résumé and ties to Washington's establishment that Democrats would find it hard to go on the attack. "For the last 15 years, he's been in the talent pool for where you start to look for a Supreme Court nominee," said C. Boyden Gray, the White House counsel to Mr. Bush's father and the chairman of the Committee for Justice, an organization he formed three years ago to lobby for the president's judicial nominees.

Mr. Bush also conducted an additional interview on Friday and two on Saturday. Republicans close to the administration said they thought the interviews were with three other federal appellate judges: Edith Brown Clement, Edith H. Jones and J. Michael Luttig. White House officials would not disclose the names of the also-rans, but Mr. Bartlett told reporters that Mr. Bush's interviews had included women.

As is Mr. Bush's style, the interviews he conducted with Judge Roberts and Judge Wilkinson focused heavily on the upbringing of the two men. "He wanted to know about his personal life and about where he came from," Mr. Bartlett said of Mr. Bush's interview with Judge Roberts, noting that the judge had been president of his high school class and also captain of the football team.

Judge Wilkinson said he was not asked about his views on issues like abortion or even a particular legal case in his interview with Mr. Bush as well as in interviews with others on the White House staff; he would not say if he had talked to Vice President Dick Cheney. "I wasn't crowded in any way," Judge Wilkinson said. "There was no litmus test applied." Scott McClellan, the White House press secretary, said in a briefing on Wednesday that neither Mr. Bush nor White House staff members asked any of the finalists about their positions on issues.

Neither Judge Wilkinson nor any one at the White House would shed light on Wednesday on why Mr. Bush had not selected a woman for the job, particularly after his wife, Laura Bush, had said that was her wish. The first lady's comments were interpreted by Republicans as a reflection of Mr. Bush's thinking, which fed a daylong frenzy of rumors on Tuesday that Judge Clement in New Orleans was the president's pick. A woman who answered the phone in Judge Clements' chambers on Wednesday would only say that the judge was not available, then hung up.

But retiring Justice Sandra Day O'Connor quickly weighed in on the president's nomination for her replacement, calling Judge Roberts "good in every way, except he's not a woman." Justice O'Connor made the comments in an interview on Tuesday after a fly-fishing trip with the outdoor editor of The Spokane Spokesman-Review, where she was also quoted as saying that she was almost sure Mr. Bush would not appoint a woman to replace William H. Rehnquist because she did not think he would want a woman as chief justice.

"So that almost assures that there won't be a woman appointed to the court at this time," Justice O'Connor said.

Former Senator John Breaux, a centrist Democrat from Louisiana, the home state of Judge Clement, said the rumors got so out of hand on Tuesday that people in New Orleans informed him that Judge Clement was on a plane bound for Washington, with her next stop presumably the White House.

In an interview on Wednesday, Mr. Breaux speculated that Judge Clement might never have been a real candidate. "Maybe they were all along working on Roberts and they misled everybody," Mr. Breaux said. Mr. McClellan, the White House press secretary, countered later on Wednesday that the administration had never sent out signals that Judge Clement was the pick.

What is clear is that Mr. Bush made up his mind only hours before he called Judge Roberts on Tuesday at 12:35 p.m. to offer him the job. He told only a handful of people before he picked up the phone, an administration official said, and asked them to tell no one else. Only after the call was made did Mr. Bush inform the other senior members of the White House staff.

By 7:30 p.m. on Tuesday, as Mr. Bush was informing important members of the Senate before his 9 p.m. televised announcement, Karl Rove, the president's political adviser, was calling key conservatives to tell them that Judge Roberts was the pick. One of Mr. Rove's first calls was a conference call with Mr. Gray; Leonard Leo, the executive vice president of the Federalist Society and the head of Catholic outreach for the Republican Party; Jay Sekulow, the chief counsel of the American Center for Law and Justice, an evangelical group; and former Attorney General Edwin Meese III of the Heritage Foundation.

Mr. Sekulow and Mr. Leo were part of an outreach team of lawyers assembled by the White House to push Mr. Roberts with conservative groups. Both said on Wednesday that they had known Judge Roberts for years and attested to his conservatism with others in the movement.

Judge Wilkinson said on Wednesday that Mr. Bush had given him an extensive tour of the family quarters of the White House, including the Lincoln bedroom and a handwritten copy of the Gettysburg Address. "He just could not have been more gracious," he said.

Judge Wilkinson said he could offer no insight into how the president made the decision that he did, but he did say that "I was given a good shot, and you just can't find a better person or a better judge than John Roberts."

David D. Kirkpatrick contributed reporting for this article.

Copyright 2005 The New York Times Company

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