Original airdate: November 12, 2003
Written by: Paul Redford (13)
Directed by: Alex Graves (17)
Synopsis
- With the Chief Justice of the Supreme Court facing a health crisis, the Bartlet administration hopes to make a move to name a replacement. Zoey's TV interview about her recovery exposes some still-raw feelings from her mother. And Speaker Haffley's strong-arming of budget negotiations finally pushes the President too far.
We've got a couple of solid storylines in this episode, built with some well-constructed plotting and good dialogue, not to mention some of the most memorable camera work/cinematography of Season 5. I don't think it's coincidental that we get this from Paul Redford's 13th writing credit and Alex Graves' 17th time directing - get a couple of seasoned Sorkin-era pros on the case, and you ought to get a solid West Wing episode out of them. It's also kind of neat that both main plotlines of this episode remain unresolved ... it's made quite obvious that we're going to see payoffs for both the budget standoff with the Republicans and the status of the Chief Justice down the line somewhere.
CJ: "You seem ... happy."
Toby: "Excuse me?"
CJ: "Happy. You know, sensation your fellow mammalians occasionally experience."
Toby then outlines the reasons why the White House needs a big win, something a new Supreme Court justice could provide.
Toby: "Haffley's treating the discretionary budget like a chew toy. We're about to cave on tax cuts for billionaires and who the hell knows what else Angela Blake is giving away in there. But you know what? We're going to appoint a new Chief Justice. Breath new life into the Constitution. Do you know how rare that is? The last five guys didn't get to do it. We're gonna shape the future of jurisprudence, the laws that sustain our whole society, or shove somebody in there to strike down these God-awful excuses for laws the Republicans are passing."
(An aside: much as with Ketanji Brown Jackson's 2022 confirmation to the Court to succeed Stephen Breyer, any Bartlet nominee to replace Ashland would only be keeping the status quo, not "shaping the future of jurisprudence" or "breathing new life into the Constitution." Ashland was a liberal, any Bartlet nominee would be similar - it wouldn't change the shape of the court. Getting the chance to replace a justice with one holding opposite views - say, Amy Coney Barrett stepping in for Ruth Bader Ginsburg - now, that's where you can shape the court and change the future.)
But Toby's good mood can't last. Will has news.
Will: "Ashland regained consciousness. Seems it was only exhaustion and his doctors say he'll make a full recovery."
The concerns about Ashland's mental state still remain, even as he survives whatever attack he suffered, and Toby (among others in the White House, even the President) are starting to think about asking him to step down, to give the administration a chance to name his successor before it becomes an issue in the midterms or the Republicans get back in the Oval Office. There's a little problem, though - the Constitution lays out the three branches of the federal government (executive, legislative, and judicial) as separate and equally powerful. No one branch can exert any authority over either of the other two - the President asking a Supreme Court justice to step down would be a huge violation of this governmental structure.
But, they're going to delicately dance around the subject anyway. Enter Joe Quincy - remember him, the guy who interviewed for the associate White House counsel position in Evidence Of Things Not Seen and during his first day on the job sleuthed out the trail of phone calls and leaked secrets that led to Vice President Hoynes' resignation in Life On Mars? Turns out he clerked for Chief Justice Ashland back in the day, and Toby goes to him to see if he might help in establishing contact between Ashland and the President.
Toby: "Let's go over there together right now, you and me."
Quincy: "To the hospital?"
Toby: "He'll see you. You tell me he's okay, and I'll call off the vultures."
As it turns out, Ashland is not okay.
Quincy is visibly stricken by the state of his mentor, but he can't let Toby know the truth.
Toby: "What did he say? Or can he even speak?"
Quincy: "He's fine, Toby. He was up, joking. He'll be back in chambers in a couple of days."
But after sleeping on it, Quincy realizes the country, the nation's top court, and the state of the government itself may be at some risk. The other justices are already reassigning cases and delaying arguments to deal with the ailing Chief Justice. He goes back to visit Ashland, once he's awake, to talk things through. And the Chief Justice, perhaps recognizing his own deterioration, makes the decision to come to the White House.
That plotline will merge with the next one eventually, so let's begin ...
Speaker Haffley and the Republicans in charge of Congress are running roughshod over the White House. In Jefferson Lives they gave the President a list of the only candidates they'd agree to quickly confirm as Vice President, and Bartlet meekly agreed. In Constituency Of One we were told they defeated a stimulus bill the administration hoped would ease a potential oncoming recession, and used Josh's bullying tactics on a Democratic Idaho Senator as an opportunity to flip that Senator to the Republican Party. Now budget negotiations are going on, as the deadline for the government's spending authority rapidly bears down on them.
Angela Blake is having a tough time dealing with the Republicans in the budget meetings (Leo rather smugly announced "She's going to lead them" in Disaster Relief, yet now when Will asks him if she's in over her head all he can say is, "It was already a mess"). She comes to the senior staff meeting with a possible path to a solution - the GOP says they'll consider dropping their demands for a capital gains tax cut if the administration agrees to give up college tuition deductibility.
This hits Toby and Josh right where they live. It was their idea, one they came up with in College Kids after their late-night meeting with Matt Kelly in an Indianapolis airport hotel bar in 20 Hours In America, Part Two. It was a linchpin of President Bartlet's campaign, a key promise leading to his re-election ... and now they're supposed to give it up? Reluctantly, after extracting a promise from Angela that this could actually help reach an agreement, President Bartlet puts it on the table.
And then the Republicans renege. No, they claim, the cap-gains tax cut is now non-negotiable, it must be part of the new budget agreement, and the losses in revenue from that cut mean the tuition deductibility is gone for nothing. They walk out of the meetings, forcing Angela to come up with another continuing resolution to keep the government funded for another two months - but as part of the deal, the adminstration has to swallow a one-percent cut in all non-defense spending.
Josh - who typically would be in charge of these negotiations, at least before his demotion after Senator Carrick switched parties - cannot believe what he sees as the White House rolling over for the Republican Congress.
Josh: "How could this happen?"
Leo (warning): "Josh ..."
Josh: "No, Leo. How is this acceptable? Haffley's not the Prime Minister. You take this to the President, you know what he'll say?"
Leo: "He'll say yes."
And Josh, who's been trying to take his medicine and deal with his reduced responsibilities in a positive way, finally reaches the end of his rope with what he sees as Angela's botching of the negotiations.
Josh: "At least be ..."
Angela (tersely): "What?"
Josh: "I don't know. Embarrassed."
When Donna tries to explain, Josh takes it personally, as if the GOP's seemingly unlimited power over the administration is all his fault for losing a Senator. As Angela continues to try to defend her actions, he stalks away, somewhat arrogantly.
And we hurtle to the climax of the episode, as a storm gathers outside, thunder rolling, the lights in the White House flickering. The Chief Justice arrives for his unprecedented Oval Office visit.
At almost the same time, the Republicans arrive, led by Speaker Haffley and the Senate Majority Leader.
As Ashland talks with the President in the Oval Office, he doesn't agree that it's time to step down. In a scene reminiscent of retiring Justice Crouch chewing out President Bartlet for being too moderate in The Short List, Ashland ruefully tells Jed he's too weak politically. He's not in a strong enough position to get a fitting replacement confirmed, and therefore, he's not leaving.
Ashland: "Because it's all compromises now, the ones who have no record of scholarship, no body of opinions, nothing you can hold them to, that's who they'll confirm, raging mediocrities."
And he strikes deep at Bartlet's political position:
Ashland: "You can't do it, Jed. You're not strong enough. The Speaker's running the table. And I can't take a chance."
The chastened President heads to the Roosevelt Room, ready to reluctantly accept another continuing resolution with a one-percent cut. And then, in a scene that shows off a lot of directorial and cinematographic talent, with uncharacteristic extreme close-ups and a shaky hand-held camera, Haffley pulls yet another switcheroo.
Haffley: "Excuse me, Mr. President. I'm sorry. There's been a change. I know we talked about a one percent cut. It's going to have to be three."
The President is stunned. They had an agreement, an agreement made out of weakness that the administration felt forced to swallow, and now Haffley is twisting the knife and using what he sees as unlimited leverage to change the deal and make the Democrats suffer even more.
Haffley insists there's no more negotiations, this is the last offer.
President: "No."
Haffley is surprised by this pushback. Everyone stands. This will be on you, he says, and the government's authority to spend money ends at midnight.
Haffley: "Let's be clear, sir. We can not, we will not vote to keep on footing the bill. You will be held responsible for shutting down the federal government."
And let's face it, this gives us one of the epic quotes from Season 5.
President: "Then shut it down."
Boom. The screen goes dark as we hear the sound of a giant switch being shut off.
President Bartlet, spurred by the words of an ailing Chief Justice, finds the strength to stand up against the demands of a steamrolling Republican Congress. Will it be a winning strategy? Who gets the blame for shutting down the government? Which side will the public support?
Tune in next week ... at least that's what they said in 2003.
Tales Of Interest!
- I think we are in early November here. Several times it's mentioned the continuing resolution to keep the government funded through the holidays (confirmed as January 3 by Angela at the final meeting) will last for "two months."
- Let's talk a bit about past administrations and the history of Presidents in The West Wing universe. Joe Quincy says Justice Ashland has served under six administrations and 22 Congresses, and Toby confirms the number of administrations by saying "the last five guys" hadn't been able to name a Chief Justice. Okay -- Congresses are for two years. If we stretch things to say Ashland was confirmed at the end of one Congress, and we are halfway through the current congressional term, let's make it 42 years. That places Ashland's arrival on the Supreme Court at 1961, which would have been John F. Kennedy's administration. Kennedy's name has been mentioned a bunch during the series, so his presidency is basically confirmed in this universe. If we work backwards from Bartlet, he's serving a second term (first elected in 1998). He defeated a one-term Republican President who was elected in 1994; we know he was a Republican because Justice Crouch said he waited five years to retire from the Supreme Court until a Democrat was President (The Short List) and we know he was a one-termer because Leo was Secretary of Labor under a Democratic President in 1993 (In Excelsis Deo). If we accept the West Wing two-year shift of Presidential elections from reality, and start that in 1962 just for grins, and every President except Bartlet's predecessor served a full two terms (not likely, given history, but let's go with it) - that's still seven administrations (Kennedy, then 1962-70, 1970-78, 1978-86, 1986-94, one GOP term 1994-98, then Bartlet in 1998). Maybe Joe and Toby aren't counting Kennedy in order to get to six. They're obviously not counting Walken's two-day term in office, either.
I've talked a bit before about how real-life Presidents fit into the West Wing universe, including the one theory that sets up a situation where after Nixon's resignation in 1974 a new election was called to reset the timeline to fit where elections happen in the series. If that was the case, Toby's numbers don't work out at all (you'd have Kennedy, LBJ, and Nixon, then at least four other Presidents before Bartlet, making a total of eight administrations since Ashland's confirmation). LBJ has been brought up a couple of times in the series, but I don't think it's ever been fully confirmed he was President. Similarly, Nixon's name has been mentioned twice, once as Eisenhower's Vice President (17 People) and once (in passing) in connection with getting pandas from China (Six Meetings Before Lunch), so that doesn't necessarily mean Nixon was ever President, either. Leo does mention "hippogate" in this episode (because of Toby breaking a researcher's hippo-styled mug), which implies there must have been an event like Watergate that occurred sometime in this universe, but that's not helpful with figuring out the list of past Presidents.
I also give a shout-out to the energetic movement of both the camera and the characters as the Republicans arrive, sliding back and forth from the congressmen striding down the hall and Josh and Donna flanking them around to the communications bullpen. And then there's the shaky hand-held camera used for the climactic scene in the Roosevelt Room, as Jed finally stands up to Haffley and exerts his authority ... really good stuff.
- Matthew Perry was nominated for an Emmy in the Guest Actor in a Drama Series category for his performance in this episode. Perry had also been nominated in that category in Season 4, for appearances in Evidence Of Things Not Seen and Life On Mars. William Shatner would take the 2004 Emmy for his role as Denny Crane in The Practice.
The Constitution sets up the United States government with three separate branches, the executive, the legislative, and the judicial. Each branch is separate, and no branch has the power to control what the other branches do - so the idea of the White House (executive branch) exerting pressure on the Chief Justice (judicial branch) would violate that constitutional "separation of powers."
Quotes
Toby (coming up with statement about Ashland's death): "Okay, here it is. 'Chief Justice Roy Ashland may not be enlarged in death beyond what he was in life: an idealist, not an icon; a man, not a monument; a believer in the irreducible power of the law to shape our society.'"
CJ: "Okay, but I gotta be careful about saying 'man.'"
Toby: "Why? (sees CJ's look, stops) Oh, come on!"
CJ: "You'd be surprised. I get letters."
Toby: "Fine. Human being, then, or do the other mammals complain?"
Donna: "See, here's what I don't get. Every year we take these continuing resolutions like the dog ate our homework --"
Josh: "The Republican majority, but you're close."
Donna: "How come people aren't outraged? The rest of the country can't take endless amounts of time to finish their work."
Josh: "Well, you're forgetting the beauty of the federal budget process."
Donna: "What's that?"
Josh: "No one understands it."
-----
Toby: "It's time to get Ashland off the bench, Leo."
Will: "There's this thing called the Constitution? It's a nagging little document, I'll grant you, but --"
President: "Two hundred billion dollar deficit and Haffley wants tax cuts. Take away a few zeroes and he'd pass for a mob accountant."
-----
Joe: "The White House can't be seen as pressuring a Supreme Court Justice to change his breakfast order, let alone resign. Separation of powers."
Toby: "I see."
Joe: "You say that, but in a way that makes me wonder if you really do."
-----
Angela: "How do you think we're doing?"
Donna: "Me? I don't --"
Angela: "You're an American citizen. You pay taxes, consume government services."
Donna: "I think ... our side has done a bad job explaining that what we're fighting for is important. It's not about abstract programs and endless acronyms, but real things that affect real people, like affording college."
-----
CJ: "Mrs. Bartlet ... may I say, we miss you."
Abbey: "That's very kind. Please don't be offended if I say I don't miss you."
Story threads, callbacks, and familiar faces (Hey, it's that guy!)
- Milo O'Shea (The Verdict, St. Elsewhere, Barbarella, the 1968 Franco Zeffirelli version of Romeo & Juliet) appears as Chief Justice of the Supreme Court, for the first time given the name Roy Ashland. The subject of the Chief Justice's fading cognitive abilities was first mentioned in Inauguration: Part I when he wrote some opinions in verse, then again in Constituency Of One when he mistook a moot court at NYU for the actual Supreme Court. The Chief Justice was also present (but his face was not seen onscreen) for the actual inauguration; other instances of most of or the entire court being shown onscreen occurred in Take This Sabbath Day and The Red Mass - but Ashland/O'Shea was not present in either case. (O'Shea's appearances here and in the upcoming The Supremes were actually his final onscreen acting credits; he died in 2013.)
- You might have seen the actress playing Ashland's clerk Lisa Zimmer on TV before. Amy Stewart has appeared in Private Practice, Desperate Housewives, NCIS: Los Angeles, and (naturally) ER, which has been kind of a pipeline to The West Wing, given John Wells' producing involvement in both shows.
- Joe Quincy, played by Matthew Perry (Friends, Studio 60 On The Sunset Strip, The Whole Nine Yards) is back. We saw Quincy's interview for the associate White House counsel position in Evidence Of Things Not Seen, and his first day on the job ending in the resignation of Vice President Hoynes in Life On Mars.
- House Speaker Jeff Haffley (Steven Culp) and Senate Majority Leader Robert Royce (H. Richard Greene) are seen again. Haffley has been on the show's radar since being mentioned as a possible candidate for Speaker in 7A WF 83429, and was first seen in Jefferson Lives; Royce was actually a member of the House in On The Day Before, but then revealed as Senate Majority Leader in Jefferson Lives.
- Talk of the researchers quitting under Toby makes me think of Will's interns Lauren, Lauren, Lauren, and Cassie (first seen in The California 47th). They seemed to be pretty committed to their jobs - why aren't they stepping in after Will's departure to the VP's staff? Or are they the researchers who are quitting?
- Diane Mathers' interview with Zoey brings back the events from the night of her kidnapping (Commencement), including her talk with Charlie where she told him Jean-Paul wanted her to try ecstasy.
- Leo puts Toby in charge of talking Chief Justice Ashland into retiring, since he's been asking for more responsibility (first brought up in Han).
- The campaign promise of college tuition deductibility is recalled, which we saw developed in 20 Hours In America, Part Two and College Kids. Donna tells the entire story to Angela, including a mention of Matt Kelly, the St. Louis dad whose talk with Josh and Toby at an Indianapolis airport hotel bar led to the plan in the first place.
- There's an allusion to Josh being blamed for his mishandling of Senator Carrick and his switching parties (Constituency Of One) - when Josh and Angela are going back and forth about the budget negotiations, Donna tells him not to blame her, saying, "You know the hand she was dealt." Which causes Josh to respond, "You're saying it was me?"
- Also, what happened to Donna's "what a shame" folder from the previous episode? Shouldn't Josh have a long list of initiatives he could be taking the lead on, instead of dealing with the President's travel schedule and griping about Angela Blake's negotiating skills? Not to mention all the effort Donna put into turning Josh's mood around, which seems to have simply vanished in this episode.
- Toby tells Joe he saw Chief Justice Ashland speak at City College (of New York) when Toby was a student there. We saw him wearing a CCNY sweatshirt in The Crackpots And These Women, and has had a CCNY mug on his desk as well.
- We've seen President Bartlet chastised by a Supreme Court justice for not being bold enough before - the retiring Justice Crouch tore into the President in The Short List ("I wanted to retire five years ago. But I waited for a Democrat. I wanted a Democrat. And instead I got you.").
- WHAT'S NEXT moment: After Speaker Haffley insists on a three percent spending cut in the continuing resolution instead of the agreed-upon one percent, the lights flicker as thunder rumbles ... and President Bartlet responds, "What's next?"
President: "In two months ... five percent? Fifty? How many rounds do we go, Jeff? I'm just asking."
Haffley: "There is no 'next,' sir."
DC location shots
- None. While there is a George Washington University Hospital sign on a wall when Joe and Toby go to visit Ashland, the scene shot outside at the emergency room entrance is nothing like the actual GWU Hospital.
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| The George Washington University Hospital sign |
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| The scene shot with Toby and Joe outside the emergency room entrance |
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| The actual GWU Hospital emergency entrance |
They Do Exist! It's The Real Person, or Thing
- Ashland's clerks open the episode with references to Korematsu (Korematsu v. United States), a 1944 Supreme Court decision that held that President Franklin Roosevelt's executive order sending Japanese-Americans to internment camps during World War II was legal. The clerks make the point that the decision has not been overturned, which was true in 2003 and is still technically correct; however, in 2018's decision Trump v. Hawaii, Chief Justice John Roberts stated Korematsu was "gravely wrong the day it was decided" and "has no place in law under the Constitution."
- One of the clerks also brings up Dred Scott (Dred Scott v. Sandford), an 1857 decision that held slaves were property, not persons. That decision was overridden by the 14th Amendment, ratified in 1868.
- We see the logos of MSNBC and C-SPAN on televisions.
- Donna says Josh's sinus medicine made him so loopy he sang the lyrics to "Bye, Bye, Miss American Pie" (the song's title is actually "American Pie"). Josh retorts by saying he sang Harry Chapin instead.
- Diane Mathers is an interviewer with ABC; I'm guessing she's meant to represent Diane Sawyer. The CNN network also is mentioned, as well as the AP, the (Washington) Post, the (New York) Times, and the CNN show Crossfire (Lisa has seen Toby on that program).
- Toby says his grandfather thought the Hapsburgs still ruled in Vienna in his final years. The Hapsburg (or Habsburg) Empire came to an end with Austria-Hungary's defeat in World War I in 1918.
- Toby has a Starbucks cup in the Oval Office.
- Angela tells Josh she'll owe him a swordfish steak dinner at Kinkead's for loaning her Donna. Kinkead's was a fine-dining restaurant just a few blocks from the White House that closed in 2012.
- Charlie gives CJ a Macy Gray CD to bring to Zoey (Gray's album The Trouble With Being Myself was released earlier in 2003); John Philip Sousa also gets brought into the musical conversation.
- In Joe's argument with Toby he compares the administration's tactics in trying to get Ashland to retire to the corruption of Tammany Hall.
- Chief Justice Ashland has a roll call of real-life (deceased) judges he thinks would be worthy replacements on the Supreme Court: Oliver Wendell Holmes, John Marshall, Thurgood Marshall, Louis Brandeis, Harry Blackmun, and William O. Douglas.
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