The Short List - TWW S1E9

Original airdate: November 24, 1999

Story by: Aaron Sorkin (8) & Dee Dee Myers (1)
Teleplay by: Aaron Sorkin & Patrick Caddell (3)

Directed by: Bill D'Elia (1)

Synopsis

• President Bartlet has a golden opportunity to boost his polls and give his administration a lift with his nominee to the Supreme Court replacing a retiring justice - but when an early morning phone call reveals that nominee holds views that may not align with the administration, the President has second thoughts. A headline-seeking Congressman makes waves by accusing the White House staff of drug abuse, a claim that hits home to the Chief of Staff. Danny mixes up goldfish (the fish) with Goldfish (the crackers), but gets a peck on the cheek from CJ anyway.

"The next two decades are going to be privacy. I'm talking about the Internet. I'm talking about cell phones, I'm talking about health records and who's gay and who's not. And moreover, in a country born on the will to be free, what could be more fundamental than this?"

Most of the West Wing episodes that pertain to the Supreme Court are really good. There aren't all that many, to be honest - but perhaps it's something about that rarity that opens up some really good storytelling, or at least more than the typical White House-Congress conflicts that we see nearly every week. As we near the halfway point of Season 1, this show is hitting on all cylinders.

Oddly enough, though, the basic plot structure of The Short List is eerily similar to the last episode, Enemies. Both episodes start with the President and the staffers excited about a big breakthrough that could lift Bartlet's standing in the polls; last week it was the banking bill, here it's the nomination of a sure-thing, easily confirmed justice to the Supreme Court. Both episodes quickly find the initial celebrations soured by bad news; the land-use rider to the bill in Enemies, the discovery of the "unsigned note" revealing the judge's views on privacy rights in The Short List. And in both episodes, the administration finds outside-the-box solutions that seem to set everything right; use of the Antiquities Act to override the land-use rider, or the selection of a much more liberal, outspoken, "man of the people" judge as nominee to the Supreme Court.

In both cases, the solutions look like elegant ones. The President can get what he wants, and the successes for the administration (banking bill or SCOTUS nominee) should help in the polling. However, there apparently was no political bounce after the banking bill (Toby is still complaining about their 48 percent approval rating, and calls the staff "the gang that couldn't shoot straight"). Mandy doesn't think Mendoza's story is one she can sell (come on - a NYPD cop from Brooklyn who got shot in the leg, took a desk job, went to law school at night, rose through the ranks of District Attorney and Federal District Judge,and now has been selected for the highest court in the land; if you can't sell that story, Mandy, you gotta get out of the game).

Let's move on the episode. Josh and CJ (and Sam and Toby and even the President) are exuberant once Judge Peyton Cabot Harrison III tells Josh on the phone he would accept the President's nomination to the Court to replace a retiring justice. I mean, ridiculously excited, like:

And

(That's a leaping high-ten from Sam and Josh, if it's too dark to see), and

Yeah, these guys are thrilled, so much so that Donna has to say, "This is just gross." They do believe Harrison will be a slam-dunk nominee, expected to pass out of committee unanimously and sail through the Senate with 90 votes ("Just what the doctor ordered!" according to the President). His resume is exceptional, he's a lifelong Democrat who clerked for a Republican, and even better - he hasn't written any opinions or made any statements about abortion.

But the President starts to have second thoughts after the retiring Justice accuses him of playing things safe and not pursuing his ideals. He's able to brush off his doubts - until an early-morning phone call to Sam reveals an unsigned note, purportedly written by Harrison while at the Harvard Law Review, that expressly denies a constitutional right to privacy.

This issue of privacy is a big one in this episode, and particularly to Sam. We've seen before he takes privacy very seriously (the entire subject of his relationship with Laurie being a "thing" to others and the media irritates him) and the specific issue of privacy rights of gays is also a flashpoint for him (when Josh is vetting Charlie for the White House job, Sam says the personal questions are only to find out if Charlie's gay or not, and if Charlie wants to sue the White House he would take the case). So when it's Sam who gets the unsigned note, and realizes the implications of naming this judge to the Supreme Court, it's Sam who gets most perturbed.

This news about Harrison opens the door for President Bartlet to reconsider another judge on his short list, Roberto Mendoza. Mendoza doesn't check all the resume boxes that Harrison does, but he is a Hispanic who is a solid liberal voice and protector of personal rights. Bartlet decides to talk to each of these candidates, and the discussion with Harrison in particular is a nice, revealing piece of writing that I think is one of the solid scenes in West Wing Season 1. The legal ramifications of banning cream in coffee, the Georgia delegation to the Constitutional Congress calling future legal minds "fools" (a quote Sorkin made up out of thin air, by the way), Harrison's ire at being cross-examined by a young Sam Seaborn ("I do this for a living." "Due respect, so do I, your honor") - it's good stuff. It becomes clear after that interview that Harrison does not fit the bill for the Supreme Court (Sam declares, with bite, "Put him on a bus").

And then in comes Mendoza. Told he's been called to the White House to discuss a post on the (fictionally created by Mandy) President's Commission for Hispanic Opportunity, and treated like a rock star as he walks the halls of the West Wing, he's instead unknowingly interviewed for the Supreme Court post. Once he convinces Toby (admittedly, with a relatively easy question just about any viewer of The West Wing would also be able to pass), he's the selection.

The particular issue Mendoza is asked about pertains directly to the episode's other main plot. A Republican Congressman, Peter Lillienfield, goes on TV and calls out the White House staff, claiming a third of those that work there abuse drugs. This puts the administration on the defensive, right when they expected to hit a public home run with the Harrison nomination. Mandy pushes for drug tests to make the issue go away fast, but the other staffers come down solidly on the other side of the argument. Josh is tasked with actually interviewing the West Wing staff to find out who does or doesn't use drugs.

Eventually, Josh comes to the realization that Congressman Lillienfield must have some kind of information along those lines that could prove damaging to the administration. Putting two and two together, he has a talk with Leo (a recovering alcoholic, a rather poorly kept secret in Washington) and discovers Leo also abused pills prior to a stint in rehab six years ago. Josh realizes this is the information Lillienfield has, and that he intends to use it to damage the White House.

Which brings Josh to say, "You're Leo McGarry. You're not going to be taken down by this small fraction of a man. I won't permit it."

And then there's Danny, still pining for CJ and pressing for a date with her. I gotta say, even though he should know better, the chemistry and witty badinage between these two is a delight. In any event, after Danny helps Josh figure out what Lillienfield's game is, Josh helps Danny by telling him CJ loves goldfish. Unfortunately, he doesn't specify that he means the crackers - so Danny takes him at his word and brings CJ an actual goldfish. Meet Gail:

CJ's reaction is absolutely perfect, as she bursts into laughter in a way only Allison Janney can. But not in a dismissive, cruel way - a perfectly human, friendly response to Danny's mistake. It kind of works out for Danny, as he does get a peck on the cheek:

Once again in this episode, the White House pulls a victory out of something that looked very much like trouble. Will it turn the Bartlet administration around? Will that 48 percent approval rating never change? Has the ship been righted? Well, stay tuned. Also stick around for the continuing story of attacking the administration through Leo, and Gail's goldfish bowl decorations.

Things to think about

- It's mentioned how they've vetted Harrison for the past two months. Toby says they're going to go over all his writings in the final four days, after which five cartons of papers are delivered to Sam. I do have to ask - where were those five cartons in the past two months?

- Seeing Leo's stricken look when Josh tells him Lillienfield has the rehab records ... my gosh, John Spencer is good. And Josh's response, reaching out to touch him, is just spot-on.

- The question to Mendoza that turns Toby around (what if a White House employee were fired for refusing to take a drug test?) - I get how that was written to fit into the episode's themes of privacy rights and Lillienfield's accusations, but ... am I just a crazy old liberal, or is that a simple answer?


Quotes    

Crouch: "You ran great guns in the campaign. It was an insurgency, boy, a sight to see. And then you drove to the middle of the road, the moment after you took the oath."

President: (clears throat) "Joseph --"

Crouch: "The middle of the road. Nothing but a long line, painted yellow."

President: "Excuse me, sir --"

Crouch: "I wanted to retire five years ago. But I waited for a Democrat. I wanted a Democrat. And instead I got you." 

-----

Toby: "Sam, you're going to write the President's introduction, you're also going to write Harrison's remarks."

Sam: "Harrison's not going to like that."

Toby: "You show him the robe he gets, he'll like it fine. CJ, no leaks. If the name of this nominee is leaked before I want it to be leaked, I'm going to blame you and you're going to find that unpleasant."

CJ: "I've gotta tell you something, Toby, you're hot when you're like this."

-----

Josh: "Phillips Exeter, Princeton, Rhodes Scholar, Harvard Law Review, for which he was - oh, yeah - the editor. Did I mention that he was Dean of Harvard Law School? Did I mention that his father was Attorney General to Eisenhower?"

Donna: "Peyton Cabot Harrison the third."

Josh: "That's right."

Donna: "Jewish fella?"

-----

Toby: "Does Mendoza know why he's coming here?"

Mandy: "He thinks he's interviewing for a place on the President's Commission for Hispanic Opportunity."

Toby: "Is there such a thing as the President's --"

Mandy: "It was the best I could do on short notice."

Toby: "All right."

Mandy: "I had to make a letterhead."

Toby: "It must have taxed your considerable creativity."

----- 

President: "Did you have a drink yesterday?"

Leo: "No, sir."

President: "You going to have one today?"

Leo: "No, sir."

President: "That's all you ever have to say to me."

Leo: "You know it's going to make things very hard for a while."

President: "You fought in a war. Got me elected. You run the country. I think we all owe you one, don't you?"

-----

President: "Judge Mendoza, would it surprise you to learn that for the past few months your name has been on the short list of candidates for the bench?"

Mendoza: "Yes, Mr. President."

President: "Well, then this is going to knock your socks off."

-----

President: "What do you say, Leo? You up for a good fight?"

Leo: "I believe I have one in me, yes, sir."

President: "Good. Let the good fight begin."

--------

Story threads, callbacks, and familiar faces (Hey, it's that guy!)

• Justice Crouch is played by Mason Adams, who older folks like me will remember most for being the voice of the Smuckers commercials ("With a name like Smuckers, it has to be good").

• In the conversation with Justice Crouch, President Bartlet mentions that in three years he hopes to be running for re-election. Either Sorkin hasn't yet figured out his long game with Bartlet and his soon-to-be-revealed medical condition (He Shall, From Time To Time ...), or Bartlet is hiding his true plans from Crouch.

• Donna lets slip that when things go badly for Josh at work, he ends up at her apartment drunk, yelling at her roommate's cats. This seems, I don't know, a little too intimate for their supervisor/subordinate work situation, but fans of the show will remember how the whole Josh/Donna storyline develops over the entire 7 seasons.

• Judge Harrison is played by familiar face Ken Howard (1776, The White Shadow, many other movie and TV appearances).

• Remember the CND news network, seen in A Proportional Response and Five Votes Down? The channel is back, although I still don't know what those letters stand for. Cable News Desk, perhaps? (Notice also, Toby has a microwave below those TVs ... TVs both on the same channel, which begs the question, why two TVs?)

• We found out in Five Votes Down that Leo was a recovering alcoholic. Here we discover that's the worst-kept secret in Washington - but what most people don't know is that he also abused pills, and went through rehab at Sierra Tucson six years ago. The Leo/abuse storyline is a good one over the early seasons.

• Keep an eye on Gail's fishbowl in episodes to come. Set decorators often put items pertaining to the episode's plot in her bowl. I will try to point them out when I can.

• Check it out - it's Ed (Peter James Smith)! Not yet constantly attached to Larry, but hanging out with Margaret instead. (This is his first credit as "Ed," by the way, so nice upgrade from Congressional Aide.) Notice Margaret's quite interested look regarding Judge Mendoza, who just passed by. 

• Speaking of Roberto Mendoza, it's Edward James Olmos (Miami Vice, Blade Runner, Stand and Deliver, Battlestar Galactica). He would appear on The West Wing as Mendoza just one more time, which is a shame, because he's great.

DC location shots    

• Outside the Supreme Court, awaiting remarks by the President after meeting the retiring Justice Crouch

• Outside the Old Executive Office Building, as Josh and Danny talk about Lillienfield (and goldfish)

(Interestingly, the Old Executive Office Building was renamed the Eisenhower Executive Office Building on November 9, 1999 - two weeks before this episode aired. Considering how Eisenhower and his advisors are mentioned more than once in this episode, it's kinda kooky.)

References to real people    

• President Dwight Eisenhower (Judge Harrison's father is said to have served as Attorney General in his administration - the real-life AGs under Eisenhower were Herbert Brownell Jr. and William Rogers)
• President Harry Truman
• When Lillienfield is attacking the Bartlet White House staff for staining the reputation of those who came before, he mentions the names Schlesinger, Sorensen, Rumsfeld, and Persons - Arthur Schlesinger Jr., Ted Sorensen (both advisors to Kennedy), Donald Rumsfeld (advisor to Nixon and chief of staff under Ford), and Wilton Persons (chief of staff under Eisenhower). Now this means in The West Wing universe, we've had definite mention of the Presidents between FDR and LBJ (Roosevelt, Truman, Eisenhower, Kennedy, and Johnson have all been specifically referred to) as well as a member of Nixon's staff (Rumsfeld). I don't believe there's ever any reference to Ford, Carter, Reagan or Bush I during the series, nor does Watergate ever come up, which means The West Wing timeline diverged from real life after the Nixon administration. We know there must have been two Republican Presidents prior to Bartlet (since Crouch says he held off his retirement five years until a Democrat took office). There's about seven possible Presidential terms between Nixon and Bartlet (again, with The West Wing elections on a different cycle than reality, it doesn't quite match up), and we will discover a couple of the fictional Presidents that preceded Bartlet in later seasons.
• Former Supreme Court justices Warren Burger and Black (meaning Hugo Black) are mentioned.
• Toby says that Harrison hasn't revealed a position on "Roe," which clearly refers to the Roe v. Wade decision legalizing abortion. "Jane Roe" was the alias for Norma McCorvey, the plaintiff in the case.

End credits freeze frame: The Oval Office just after Mendoza accepts his nomination.