The Supremes - TWW S5E17

 

Original airdate: March 24, 2004

Written by: Debora Cahn (6)  

Directed by: Jessica Yu (3)

Synopsis

• The quest to name a new Supreme Court justice takes an unexpected turn when Josh comes up with a bold, completely implausible plan to get both a progressive liberal and a staunch conservative on the bench.

"I love her. I love her mind. I love her shoes." 

A standout episode featuring a standout cast (Glenn Close! William Fichtner!), with top-notch writing and plotting from Debora Cahn and active, interesting directing from Jessica Yu make this a treasured favorite among West Wing fans, and a true hallmark of the series overall during what's been kind of a beleaguered Season 5. The fact that this episode is followed up by what many regard as one of the worst episodes of the series only serves to emphasize the unevenness of this first post-Aaron-Sorkin season ... but wow, this one is a keeper!

And, somewhat surprisingly given the serious subject matter and the high stakes involved, it's actually written as a comedy, devolving almost into a French farce by the final act. It's really funny! You've got funeral bouquets being sent to living Chief Justices, a Senator getting both Josh and CJ "a little bit drunk," Toby and Josh becoming a pretty good comedy team as they deal with potential SCOTUS nominees, a randy CJ keeping Toby's prying eyes away from her AOL IMs,

dry cookies, and Donna's parents' cats inspiring a crazy Hail Mary effort to transform how judicial nominations are made.

Plus, the sight of Josh and Toby arguing in Debbie's office outside the Oval, as she urges them to use their "inside voices" while the President peers out to see what all the racket is about:

Followed by Debbie spraying Josh with water, like a disobedient pet:

And then a half-drunk Josh, trying to get Toby's attention while two highly regarded federal judges are having an in-depth conversation in the Roosevelt Room:

"Josh Lyman is gesticulating wildly."

Back to the top: as we learned at the end of the previous episode, Supreme Court Justice Owen Brady has died, and the President now has the opportunity to name a replacement to the court. Brady was a hard-core conservative judicial voice, and given the opposition of the Republican Congress, the White House knows there's no way they could get a liberal replacement confirmed. They start coming up with names of moderate judges they think they might have success with.

As part of the overall effort, Leo and the staff think bringing in a left-wing judge or two, just so they're seen talking in the White House, might cause the conservative Republicans in the Senate to agree to a more moderate choice when the time comes - kind of a bait-and-switch. They're happy to go with the judge they think would cause the most consternation among the conservatives, a female judge who's overturned a law regarding parental consent for abortions, a judge that would have no prayer of getting confirmed in the current Senate - Evelyn Baker Lang.

Trouble is, once Josh and Toby talk to her, they're intrigued, even smitten. While she's totally aware of what's happening herself ("I'm window dressing. That's fine. I'm happy to help. But let's just chat about the weather"), Josh in particular can't get her out of his mind as a candidate. So as President Bartlet is talking with the moderate centrist everyone can get behind, Lang gets called back in for another visit - and the difference couldn't be more stark.

Judge Brad Shelton, being asked by the President about his stance on certain issues, refuses to say anything at all. "I don't position myself on issues and I don't know what I think about a case until I hear it," he says - which, to be fair, is solidly on the ground pretty much all SCOTUS nominees follow these days. The term "litmus test" comes to mind, which refers to an administration (or Senate) having certain requirements of where a judge might stand on certain high-profile issues before sending them through confirmation. The current thought, exemplified well by Shelton here, is that judges pretend they don't have firm opinions on points of law and that they'll look at each case before them in a totally fresh, unbiased light.

Lang, on the other hand, continues to dazzle Josh and Toby. They ask her about what she might say in a confirmation hearing if the committee brings up judicial activism regarding reproductive rights, and she counters with an answer that shows she has a far better understanding of individual Senators than they expect:

Lang: "Who are you, we're playing committee?"

Josh: "This'd be coming from, one of the eleven Republicans on there, Mitchell, Davies --"

Lang: "You can only be one."

Toby: "We don't really need to --"

Lang: "If you're Webster, the question is where do you stand on Roe v. Wade, and the answer is judicial rulings shouldn't be based on personal ideology, mine or anyone else's. If you're Davies, the question is how would you approach a D & X case because he's the drum-banger on partial birth, and the answer is, I don't comment on hypotheticals. If you're Malkin, you're from Virginia so you ask in Drori, I take you point-by-point from the doctor to the father to Casey to undue burden to equal protection back to Roe at which point you don't remember the question and I drink my water for a minute while you regroup."

It's a display of intellect and self-assurance that leads Josh and Toby to excuse themselves and Josh to whisper:

"I love her. I love her mind, I love her shoes."

But after some further discussion, Lang reveals a bombshell - she had an abortion herself while a student at law school. Now it's Toby and Josh's turn to regroup.

It's clear such a candidate could never survive Senate confirmation, not to mention the public outcry once that fact was revealed. But let's give President Bartlet some credit here. He's not willing to write her off so quickly:

President: "When did she have an abortion?"

Josh: "Law school."

President: "Before or after?"

CJ: "After '73. It was legal."

President: "Are we discarding anyone else for legal activities?"

Toby: "Not yet."

President: "Tonsillectomy? We down on surfing this year?"

CJ: "She'd be publicly eviscerated."

President: "Twenty-seven million women voted for me. I think they might have had in mind that I was going to protect this particular right. 'I like the guy from Florida with the good hairdo, but I want to retain my right to choose. I'm voting for what's-his-name married to Abbey Bartlet.'"

Even so, her elevation to SCOTUS seems nearly impossible ... until an offhand remark from Donna sparks something with Josh. Donna is sharing some cookies sent by her mother, cookies in a tin decorated with pictures of her parents' cats.

Josh: "Two cats. Cat people."

Donna: "For years, they only had one, but he died over Christmas."

Josh (chewing): "This is a dry cookie."

Donna: "After what was deemed an appropriate mourning period, they went to get a new one and my mother liked the Abyssinian and my father liked the gray, and they claimed that after 39 years of marriage they've outgrown compromise so they got both."

You see the lightbulb go on in Josh's head.

Donna's story has given him an idea - don't compromise, get both. Get Lang on the court (by replacing a current liberal titan, the ailing Chief Justice) and give the Republicans their hand-picked choice to replace the conservative Brady. Josh excitedly goes to Toby, who tries to shoot it down, then reluctantly thinks it over more - they go to the President, who is leery but willing to think about it. They visit Chief Justice Ashland, who scoffs at the impossible audacity of their idea but would agree to step aside if it were for Lang.

Josh goes to the Republicans to see who they'd choose. And, just as you might expect, it's a radical conservative voice that's fought against everything this Democratic administration has tried to accomplish. Christopher Mulready is the name, and Toby is livid.

Toby: "The man wrote a book that flushes the entirety of the doctrine of unenumerated rights down the, the ..."

CJ: "Toilet."

Toby: "Garbage disposal! No right to use a condom. No right to get an abortion, certainly. No protection from electronic searches, no substantive due process!"

But Josh knows it's this or nothing.

Josh: "This is the deal. He's what Evelyn Lang is to them. We nominate the patron saint of a woman's right to choose for chief justice, we ask them to ignore an incredibly rich piece of her personal history, we take the name they give us."

There's no way this can work, right? But then Toby, after a few minutes to reflect, comes to Josh to ask how they can get this deal past the Democrats on the Judiciary Committee, especially Senator Pierce ... who, they realize, happens to share a last name with Josh's intern, Ryan ... the Senator's nephew.

Ryan pulls some family strings, gets Pierce to the White House, brings along a bottle of Scotch to Josh's meeting, while at the same time both Lang and Mulready are called in to meet the President separately. Trouble is, though, the scheduling breaks down because President Bartlet is having such a great time talking with Lang.

CJ: "Lang's still in there?"

Debbie: "Oh, she's a big hit."

CJ: "She has to leave, her evil twin Skippy's on his way."

Debbie: "I did our secret wrap-it-up sign which is I knock and say, 'The deputy NSA needs to talk about Japan' and he said, 'You talk to him, you've been there,' which is true, but it makes me think he's forgotten it's a secret sign."

CJ: "How about, 'Excuse me, Mr. President, we need to move on'?"

Debbie: "If you want the job, you're going to have to work on your typing."

And as Lang is taken to the Roosevelt Room from the Oval, she and Mulready cross paths, in a move that was never supposed to happen. But incredibly, their happenstance meeting results in a crackling discussion of legal doctrines and big issues sure to come before the Supreme Court sooner or later, and Toby in particular is mesmerized by the notion of these two accomplished legal minds working together.

Josh: "How's it going?"

Toby: "He's striking down gay-marriage bans and she's defending him. And they're as thick as thieves. And he's a fan of chain-yanking."

Josh: "She's defending him?"

Toby: "Up is down, down is up."

He rushes to the Oval Office to state his case to the President.

President: "You like him."

Toby: "I hate him. I hate him, but he's brilliant and the two of them together are fighting like cats and dogs ... but it works."

Mulready meets the President, and he impresses there, as well. 

Mulready: "Who writes the extraordinary dissent? The one-man minority opinion whose time hasn't come, but 20 years later some circuit court clerk digs it up at 3 in the morning. Brennan railing against censorship. Harlan's jeremiad on Jim Crow."

President: "Maybe you, someday."

Mulready: "They can't put me on the court. Just like you can't put Evelyn Lang on the court. It's Sheltons from here on in."

President: "There are 4000 protesters outside this building worried about who's going to land in that seat. We can't afford to alienate all of them."

Mulready: "We all have our roles to play, sir. Yours is to nominate someone who doesn't alienate people."

That last sentence strikes home to President Bartlet, and he makes the call. He's doing the historic two-justices deal. 

There's also a little bit of discussion about a congressional fact-finding trip to the Middle East, involving some non-governmental officials that's going to upset both the Israelis and the Palestinian Authority, a trip that's going to involve Toby's ex-wife Rep. Andy Wyatt. That leads to a touchy little talk about Andy and Toby's twins, twins we've heard almost nothing about since they were born 10 months ago, so that's an interesting little revelation of Toby's character (in Twenty Five he pledged his undying devotion, less than a year later he doesn't even ask about who's going to be taking care of his kids when their mother is leaving the country for two weeks) - but this is just laying the groundwork for a storyline that will take us through the end of Season 5 and into Season 6. There's also a touch of CJ flirting with Ben some more, online and on the phone (as she's trying to "fix" what she ruined with her busy schedule in Eppur si Muove), but it's barely there, and considering how lightweight and inconsequential the whole Ben/CJ story is anyway, that's just fine.

Other than that, though, it's a one-plotline episode, and it's a great one. And an amazing comedy, to boot. I don't think I nearly did it justice with my recap here, but hopefully I covered the high points for you, gentle reader. Better hang on to your hats, though, because the next episode is, well ... hoo-boy, it's something.

Tales Of Interest!

- Let's talk a little about the makeup of the Supreme Court in this universe. Josh says, "We've got centrists. We've got six of them. Plus two staunch conservatives, plus Justice Ashland." That's nine, meaning he's including the deceased Justice Brady among the two conservatives, and implying Ashland is the only progressive. Um, what about Justice Mendoza, nominated by President Bartlet and confirmed to the court in Six Meetings Before Lunch? Is Josh claiming Mendoza, hailed as a bold pro-privacy liberal judge that'd be hard to get confirmed in The Short List, is actually just one of those "centrists"?

And who exactly is on the Supreme Court at this time? Following the events of this episode, with the confirmation of Lang and Mulready assured due to the deal agreed upon by the White House and Republican leadership, we'd have:

Chief Justice Lang

Justice Mulready

Justice Mendoza

Justice Driefort (Ainsley Hayes clerked for him, from In This White House; confirmed he was a member of SCOTUS in It's Surely To Their Credit)

Justice Henry Clark (mentioned by both Ryan and Mulready)

Justice Brannigan (mentioned by Mulready)

Justice Hoyt (mentioned by Mulready)

Justice Lafayette (mentioned by Mulready)

Justice Carmine (mentioned by Mulready)

That gives us nine, which would be the correct number ... but if you remember Madame Justice Sharon Day, who was brought to the Oval Office to swear in President Walken in Twenty Five, suddenly we now have ten justices. Hmmm.

- I'm very familiar with the peanut butter cookies with a chocolate kiss, but I don't think I've ever heard them called "black-eyed susans" except for this episode. Actually, for me, growing up on a farm in southeastern Iowa, my mom would make those cookies using chocolate stars instead of kisses.

- It's a little bit interesting, I guess, that Joshua Malina appears in the opening credits but is does not appear in the episode. I mean, he's a full cast member, so he's going to be in the credits every week, but somebody like Stockard Channing only gets to be in the credits of the episodes she's actually in.

- When President Bartlet asks for Judge Lang's autograph on a copy of the 14th Amendment, he says Toby has a daughter that's 10 months old. We know the twins were born on the day of Zoey's graduation/kidnapping the previous year, which would have been in May of 2003, so this episode is firmly placed in March of 2004 (exactly when it aired). That's notable because the timeline of the show is going to be shifting soon.

- Another fleeting look at Gail's fishbowl, and I can't really see what's there. Not even the website that tracks West Wing fishbowl appearances has an answer for this one.

- Why'd They Come Up With The Supremes?

A shorthand reference to the justices on the Supreme Court, which is used by Ryan only for him to be criticized by Josh. The cross-reference to the Motown singing group The Supremes is not unintended.

Quotes    

Lang: "A conservative anchor of the court has just died - a young brilliant thinker who brought the right out of the closet and championed a whole conservative revival. You cannot replace Owen Brady with a woman who overturned a parental consent law. You'd be shish-ka-bobed and set aflame on the South Lawn. Two reporters have ... three reporters have walked by since we started. I'm window dressing. That's fine. I'm happy to help. But let's just chat about the weather." 

-----

Josh: "You sent a funeral bouquet to the family of the living, breathing Chief Justice of the Supreme Court?"

Ryan: "No, I sent them to the guy who died, Brady."

Josh: "No, actually, you didn't." 

----- 

Debbie: "I hate to do this, but it's Rena, sir."

President: "Huh?"

Debbie: "The girl in the dress with the flowers."

President: "Just now?"

Debbie: "Yes."

President: "What'd I call her?"

Debbie: "Lana."

President: "Who's Lana?"

Debbie: "I'm guessing an exotic dancer from your spotty youth."

-----

Josh (approaching CJ's door): "Is she in there?"

Carol: "Hang on. She's getting off ..."

(We hear CJ laughing behind the door)

Carol: "The phone."

-----

Josh: "We've got Lang coming in to meet the President at 7. Christopher Mulready is at 8. The press can't see 'em. We need a clear shot from the Roosevelt Room to the Oval."

Donna: "He's on the short list?"

Josh: "He is if she is. We make it both."

Donna: "Oh my god, you're putting my mother's cats on the Supreme Court."

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

• Judge Evelyn Baker Lang is played by the amazing eight-time Oscar nominee Glenn Close (The World According To Garp, The Natural, Fatal Attraction, Damages, on and on and on). She's dazzling in this role.

• Centrist nominee candidate Judge E. Bradford Shelton is played by Robert Picardo (Star Trek: Voyager, Stargate: Atlantis, Dickinson).

• The recognizable face of Mitchell Ryan (Dharma & Greg, Grosse Pointe Blank, Lethal Weapon) is seen as Senator Pierce, Ryan's uncle. Ryan actually passed away just a few months before this post, in March 2022.

• I love the work of William Fichtner (Contact, Armageddon, Black Hawk Down, Mom [also starring Allison Janney!]), so it's great to see him as Judge Christopher Mulready.

• Ryan is back (after having kind of gone missing in the previous episode), and the fact he has an uncle in the Senate plays a big role in the plot.

• Andy returns, along with a mention of Toby's twins, newborn twins which he pledged his life to in Twenty Five but has hardly said a word about since. It's hard to reconcile Toby's emotional, devoted speech to the newborn twins in that episode with the guy here who doesn't even ask about who will be taking care of his children when their mother is heading to the Middle East for two weeks.

• Speaking of Andy, the congressional delegation to the Middle East that Toby is so upset about will be an ongoing thread throughout the rest of the season, with repercussions even into Season 6.

• Lisa Wolfe from the Senate Judiciary Committee pops up again, after being seen in Eppur si Muove being persuaded by Josh to help get some judges confirmed (including his friend Eric Hayden). Now she's knee-deep in Josh's maneuverings in the double-SCOTUS-justice swap.

• Milo O'Shea (The Verdict, Barbarella, 1968's Romeo and Juliet) has one more appearance as Chief Justice Ashland (previously seen in Separation Of Powers).

• Chief Justice Ashland's health issues were first brought up in Inauguration: Part I when the Chief Justice was writing opinions in verse; in Constituency Of One he mistook a college moot court proceeding for the actual Supreme Court; and in Separation Of Powers he collapsed and nearly died, but insisted he couldn't step down because the Bartlet administration wasn't strong enough to get a suitable liberal judge confirmed to replace him.

• Judge Lang brings up Josh's attempts to get his friend Eric Hayden confirmed to a federal court, which we saw in the previous episode, Eppur si Muove.

• The President's mangling of Rena's name (calling her "Lana") is a callback to Martin Sheen's difficulty with keeping names straight himself. Aaron Sorkin gave that trait to the character of Jed, and it's continuing even in the post-Sorkin era.

• CJ is canoodling on the phone with her college beau Ben, referred to as "Ranger Rick" by Josh (he was a park ranger in Alaska, recently relocated to the Washington area). The Ben storyline has been trickling along since Constituency Of One, with CJ deciding to try to make a go of becoming a couple in Eppur si Muove.

• President Bartlet's off-hand remark about "the guy from Florida with the good hairdo" refers to Governor Rob Ritchie, Bartlet's Republican opponent in the 2002 election whom we saw portrayed by James Brolin in Posse Comitatus and Game On.

DC location shots    

• At the opening we see Josh coming in through what appears to be the actual White House security gate. I had my suspicions about it actually being on location at the White House; while in some previous episodes we've seen shots of the entry gates from the outside, we've never actually had cameras set up inside the fence. It turns out I was correct, listening to the DVD commentary; this was actually filmed on the Warner Brothers lot.

They Do Exist! It's The Real Person, or Thing    

• The landmark 1973 Supreme Court decision Roe v. Wade, which enshrined a constitutional right to abortion, is mentioned several times. Lang also mentions Casey offhand, which would be 1992's Planned Parenthood v. Casey, which also upheld abortion rights. Of course both Roe and Casey were basically reversed in 2022 by the Dobbs v. Jackson Women's Health Organization decision from the hard-right Roberts court.

• Judge Lang recalls sneaking a copy of Lady Chatterley's Lover out of the public library and never returning it.

• Donna's parents' cats are named Shadrach and Meshach, from the Bible story in the book of Daniel of the three boys who survived being cast into the furnace after refusing to bow down to an image of the king. No word on why Abednego didn't get a shout out.

• Josh says if the Supreme Court had a bench full of moderates in 1954 "separate but equal" would still be the law. That's a reference to Brown v. Board of Education, a 1954 decision that established "separate but equal" facilities were unconstitutional.

• Toby is seen with a Panda Express menu, perhaps a catering menu.

• Chief Justice Ashland quotes Shakespeare (Richard II, to be precise) with his "Let us sit upon the ground, and tell sad stories of the death of kings."

• Josh calls CJ's friend Ben "Ranger Rick," although I don't think he means he's a raccoon.

• A couple of songs appear: Ryan is heard singing "Stay" in the hallway (making Josh refer to him as Elvis), and CJ and Senator Pierce wind up singing "American Pie" after getting a little too deep into the Scotch (a 21-year-old Glenlivet, as Josh describes it, which currently goes for over $250 a bottle).

• Debbie's office is seen with a Bose Wave Radio (we've seen a similar unit in the Presidential residence before).

• When Lang and Mulready are going at each other back-and-forth in the Roosevelt Room "Lopez" is mentioned along with the Commerce Clause; that's a real case, 1995's United States v. Alfonso D. Lopez Jr., which restricted the power of Congress to enact legislation under the Commerce Clause.

• Mulready brings up dissents from past Supreme Court justices Brennan (censorship, referring to 1988's Hazelwood School District v. Kuhlmeier) and Harlan (dissenting against the principle of segregation and "separate but equal" in 1896's Plessy v. Ferguson).

• We see the logos of both MSNBC and C-SPAN on TV screens in the final scenes.

End credits freeze frame: Judges Lang and Mulready shaking hands in the Roosevelt Room.

Previous episode: Eppur si Muove

Next episode: Access

Eppur si Muove - TWW S5E16

Original airdate: March 3, 2004

Written by: Alexa Junge (2)  

Directed by: Llewellyn Welles (1)

Synopsis

• A conservative Congresswoman goes after federal funding for a controversial medical study by using Ellie Bartlet's involvement as a wedge, but it turns out the idea didn't start with her. Josh tries to pull strings to get some federal judicial candidates installed, including a law school friend. Abbey's plan to volunteer at a free medical clinic gets a boost by appearing with the Muppets. And CJ comes to a decision about Ben, but following through seems to be a problem.

"Somebody's out for blood and they're targeting Ellie Bartlet." 

Yes, this is the one with the Muppets. At least, that's how this episode seems to be remembered by everyone, and it's hard to not think of it that way given how this image sticks in everyone's mind:

Yet, the Muppet storyline is a minor part of the episode, and certainly one of the least important. This goes back to Abbey's decision in An Khe to volunteer at a free clinic, helping to vaccinate kids, and the White House's attempt to tamp down the controversy of her getting back into medicine after voluntarily giving up her license in order to avoid the negative publicity of having it suspended in Dead Irish Writers. And that's about all there is to that, with the hilarious exception of Elmo bringing up that whole issue when Abbey is trying to give him a shot:

Elmo (as Abbey is about to give him a vaccination): "But Mrs. Doctor Abbey, First Lady Doctor, will it hurt Elmo?"

Abbey: "Well, maybe just a tiny little bit, but it's very important."

Elmo: "Wait a minute, didn't you give up your medical license? (everyone laughs) Do you have a diploma you can show Elmo?" 

The other fairly minor (although long-running) storyline involves CJ and Ben. CJ has finally come to a decision; she wants to try to make a serious go of things with Ben. To recap, CJ and Ben went to college together, were a couple for a while, lived together for six months, but whenever they reconnected they always get on each other's nerves after a few weeks and break up again. They haven't seen each other for six years, Ben was a park ranger in Alaska, got married but is now single again, and now that he's been assigned to a Park Service post near Washington he's been trying to call CJ and meet with her since Constituency Of One. With Carol's encouragement, CJ has doused herself in perfume and is prepared to take the leap and commit to Ben, for real this time.

Which kind of comes as a surprise to Ben, because he hasn't even been able to have much of a conversation about anything with CJ, and we're not sure this is actually what he was after in the first place.

But Carol is getting a kick out of it.

But as the day progresses, every time Ben and CJ get a minute to talk more about a possible future, CJ is pulled away by the day's events.

Here comes Toby to break it up, that killjoy.

Which, of course, is the entire point. CJ's job is always going to come first, anybody who wants to be in her life is going to have to accept that, and at this point we're not sure that's really what Ben wants in a relationship.

On to the title storyline ... a conservative Republican Congresswoman, Barbara Layton, has come out with a list of medical studies she deems as morally unsuited for federal funding because they involved sexually transmitted diseases, including those researching the human papilloma virus (HPV) or HIV, the virus that causes AIDS. By publicizing the fact some of these studies involve sex workers, she hopes to rile up public anger against their funding - and then she goes a step further by exposing the fact that Ellie Bartlet, the President's daughter, is one of the researchers on one of these studies. It's a blatant attempt to link the Bartlet administration to reckless spending on prostitute health and the sinful gay lifestyle, insinuating Ellie's project is getting funded only because the President's daughter is involved.

Of course this is all political gamesmanship, as Toby and Josh know (and as their discussions about the unknown future value of such research, and the benefits gleaned from research studies that may not have a specific objective in mind in the first place show). But getting Ellie's name involved publicly stirs up some anger in her dad.

Ellie comes to the White House to try to get away from the press at Johns Hopkins, where Jed actually tries to convince her to come out and fight back, to defend this research and its quest to discover a vaccine for HPV (which can lead to cervical cancer, so it's not just a sexual-transmission-only-affecting-those-with-loose-morals kind of thing). Ellie is reluctant, just wanting to do her work in private like always ... but she eventually comes around to holding a press conference and speaking out in support of unfettered medical research.

Meanwhile, Toby gets to work on what's behind Congresswoman Layton's attack, and with Rena's help discovers an identical list of projects online from the Traditional Values Alliance, a conservative religious group. Naturally, the idea of one specific religion's beliefs being used as a cudgel against scientific study makes Toby even more driven to fight back. But then the Congresswoman says something that makes it a little less cut-and-dried:

Toby: "You got your list from the Traditional Values Alliance."

Layton: "I didn't."

Toby: "Your lists are identical."

Layton: "There's a lot of people who care about this issue. A lot of prominent people, on both sides of the aisle. You'd be surprised, Toby." 

Then again, thanks to Rena studying the fine print, she discovers a $14 discrepancy in the funding lists between what the Alliance had and what the Congresswoman put out. Toby figures out that the list Layton got her hands on, a list that hadn't been made public, must have come from Will getting research ready for Russell's campaign run in 2006. He confronts Will, who defends the Vice President making plans for his upcoming run, but denies knowing how Layton got the list.

Suspicious, Will goes to the Vice President - and we discover it was Russell behind that leak all along.

Russell's wife serves on a breast cancer foundation board, along with Congresswoman Layton, and their dismay about what they see as breast cancer research losing out on funding to projects involving those "sinful" sexually transmitted diseases led to the Vice President slipping that list to Layton.

This news, and the realization that Russell actually was behind the public exposure of Ellie's involvement in this research, bringing the President's family into this political fight simply for Russell to curry favor with conservatives, causes Will to consider the ruthlessness of it all.

Josh's storyline here actually turns out to hold the most weight, because it's going to carry over into the next episode (generally considered one of the standouts in Season 5, if not the series as a whole). He's working to try to get a law school friend, Eric Hayden, to hold off on taking a position at Georgetown University so the administration can get him nominated to a federal judgeship. Hayden's already been waiting for a while, and he just doesn't feel like he can sit around anymore while the Republicans bottle up all the judicial nominations put forth by the Bartlet administration.

Josh knows this is a problem, but he has an idea - he wants to use recess appointments to get a bunch of judges placed in federal courts. Recess appointments can be used by Presidents to fill posts without the need for Senate confirmation, if he makes them while the Senate is in recess (although those terms only last until the end of the current Congress, when they expire and the posts must be filled again by confirmed nominees). Leo is reluctant, but Josh has a long list of Supreme Court recess appointees who later were confirmed and had stellar careers on the bench.

But then, just before the plan gets taken to the President, news breaks ... Owen Brady, an associate justice on the Supreme Court, has died. Everything else involving judicial nominations now takes a back seat to the fight the administration is going to have on its hands about whomever they name to replace Brady. We can recall the efforts it took the White House to get Roberto Mendoza confirmed to SCOTUS in Season 1; now that this Republican Congress is even more obstructionist (we've seen the power of Speaker Haffley to unite opposition to the President in Shutdown, and that power forcing the White House to completely cave on their choice of a Vice President in Jefferson Lives), it's going to take everything the administration can pull together to get any decent nominee through this confirmation process.

Which will be discussed ... well, just watch the next episode to see what actually happens.

Tales Of Interest!

- The Thanksgiving weekend marathon on HLN of the series' first four seasons brought some things up that we should be scratching our heads about:

* Whatever happened to Anthony, whom Simon Donovan was Big Brother to before his tragic end in Posse Comitatus? CJ tried to mentor him, then Charlie stepped up as a replacement Big Brother in 20 Hours In America Part Two. I think we last saw Anthony in Election Night (when Charlie helped his football player friend vote).

* Speaking of Charlie, whatever happened to his desperate love for Zoey, which caused him to go to great extremes at the end of Season 4? You might think with the storyline involving one Bartlet daughter here, Charlie might be spurred to reflect on feelings for another Bartlet daughter, but no.

* Speaking of desperate love for another, why haven't we heard anything about Toby's kids, Huck and Molly? If this episode is happening in the spring (not a sure thing, considering the new team's adjustments to time), they'd be coming up on their first birthday, which ought to be a big deal, plus we do remember Toby pledging his complete and total devotion to them in Twenty Five. In this episode Rena lets him know she's a single mom with a daughter and that doesn't bring any mention of (single) fatherhood from Toby?

- Perhaps the first fleeting mention of what's going to become a "time skip" of sorts, when Abbey sarcastically tells CJ they need "a photographer and seven years' worth of yarn" to fix her image as the "traditional hat-knitting President's wife." This is the spring of 2004; President Bartlet took office in January of 1999; the administration is only six years along. We'll start to get plenty of more in-your-face mentions of "seven years" coming up pretty soon, as the show tries to jump ahead and get its broadcasts off the actual real-life calendar.

- Let us praise Richard Schiff for his intricately effective acting work to portray the amount of perfume CJ is wearing.

Waving the paper to waft the scent away.

- When Josh refers to the Supreme Court as "nine guys" and Donna corrects him by saying, "Seven guys and two highly qualified female jurists," that fits the actual makeup of the real Supreme Court in 2004 (the men were Rehnquist, Stevens, Scalia, Kennedy, Souter, Thomas, and Breyer, with O'Connor and Ginsburg as female members of the Court). The last time we actually saw the Supreme Court onscreen (The Red Mass), that also showed the Court with seven men and two women - although the shot in that episode showed neither Justice Mendoza (confirmed to the bench in Six Meetings Before Lunch) nor Chief Justice Ashland (shown suffering serious health issues in Separation Of Powers). 

- We find out new information about Rena (she has a daughter), and we're left wondering what's happened to Ryan (Donna can't find him and his roommate has no idea where he is). We also learn Rena makes $650 a week (about $34,000 a year, which would be about $54,000 in 2022 dollars). That rate of pay in 2004 puts her around the GS-6/GS-7 payscale, which is probably about right for a White House assistant.

- We get a look at Gail's fishbowl, but I can't really tell what's in there. A website that tracks each appearance of the fishbowl says it's a telescope (in honor of Galileo), so ... okay? I guess?

- Why'd They Come Up With Eppur si Muove?

After the Catholic Church in 1633 forced Galileo to recant his claim that the earth moves around the sun, instead of the long-held dogma that the sun rotated around the earth, a possibly apocryphal story holds that Galileo muttered under his breath, "and yet it moves" (eppur si muove in Italian). The President brings up that story while talking to Ellie and encouraging her to stand her ground and continue her research despite any outside pressure to stop.

Quotes    

CJ: "Now that you've slept on it, the call to Dr. Foy wasn't about Ellie Bartlet and I get to have a happy quiet day?"

Toby: "Now that I've slept on it I think it's worse." 

-----

Toby: "Not the President. Us. Some overeager NIH lackey trying to curry favor and this whole conversation might be a little bit easier were I not fighting my way through a cloud of Obsession."

CJ: "There's no cloud."

Toby: "It's about to precipitate out. It's about to rain Obsession." 

(later)

Leo (to CJ): "Are you wearing White Shoulders? My piano teacher used to wear White Shoulders. (CJ walks away) Not as much." 

----- 

Josh: "Did you get Leo?"

Donna: "He's booked."

Josh: "Tell Margaret I can talk so fast it won't actually take measurable time." 

-----

Abbey: "So, what was it? Was it the tube top to meet the Queen of England or the low rise jeans for the North Korean delegation?"

CJ: "Mrs. Bartlet, the press didn't know what to make of you before the MS became public. You've never been the traditional hat-knitting President's wife."

Abbey: "Oh, shoot. Was that in the handbook? Maybe just get me a photographer and seven years' worth of yarn."

-----

Leo: "I'm sorry, but can we really justify spending $800,000 on A Bio-Cultural Approach to the Study of Female Sexual Fantasy and Genital Arousal?"

Toby: "How can we afford not to?"

-----

Will: "What do CJ and Big Bird have in common?"

CJ: "This'll be fun because no one's ever made a joke about me and Big Bird before."

Will: "Your heads are in Ohio and your feet are in Florida."

CJ: "Wouldn't that make us not so much tall as crooked?"

 

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

• North Carolina Representative Barbara Layton is played by the wonderful actress Cherry Jones (24, The Handmaid's Tale, Succession, two-time Tony Award winner on Broadway).

• Of course we get to see several of the Muppets, including Big Bird, Rosita, Zoe, and Elmo.

• The Muppets were also a topic in Take Out The Trash Day, when Toby was fighting with congressional aides over funding for PBS and he corrected an aide who called Fozzie Bear "Fuzzy Bear" - although as Abbey tells Debbie in this episode, Fozzie Bear was never a part of Sesame Street/PBS, but only a member of The Muppet Show in syndication.

• Ellie's (Nina Siemaszko) status as a medical student at Johns Hopkins was first revealed in the episode in which we met her, Ellie. In that episode Ellie was in hot water for speaking to the press about the Surgeon General; in this episode the press is in hot water for involving Ellie (now a research fellow) in the story about HPV/sex worker research.

• The idea to get Abbey on Sesame Street to promote her volunteer clinic work takes us back to An Khe, where she casually mentioned to CJ she was going to start volunteering as a doctor again, which reminds us of Dead Irish Writers when she gave up her medical license "for the duration of our stay in the White House," which leads us back to the legal issues Abbey found herself in for secretly treating Jed's MS, explained in The Fall's Gonna Kill You and 18th And Potomac, which of course is based on the President's health issues first revealed in He Shall, From Time To Time ...

• CJ's past with Ben has been an ongoing plotline since Constituency Of One, when we first discovered they'd lived together for six months, back around the time they both attended/graduated from Cal.

• Sam's former office next to Toby's, the one Will used before Toby kicked him out when he went over to the Vice President's staff, is still empty.

• Representative Layton tells Toby, "I won't even mention the supercollider," to which Toby responds, "No, you guys pretty much took care of that one already." Sam's maneuvers to try to get a Senator to allow a vote on a supercollider project, even knowing it was doomed in Congress, were seen in Dead Irish Writers.

DC location shots    

• Josh's outdoor conversation with Eric Hayden was filmed outside the E. Barrett Prettyman Federal Courthouse, on Pennsylvania Avenue across from the National Gallery of Art. We got a better look at that courthouse in a scene with the special prosecutor arriving outside it in Ways And Means.

They Do Exist! It's The Real Person, or Thing    

• The Johns Hopkins School of Medicine, where Ellie is doing research, is located in Baltimore, not far from Washington, DC.

• The perfumes Obsession and White Shoulders are mentioned.

• An actual HPV vaccine became available in 2006, a couple of years after this episode aired.

• Of course the Muppets, Sesame Street, and The Muppet Show are all referred to, including Kermit, Miss Piggy, and Fozzie Bear, while Big Bird, Rosita, Zoe, and Elmo actually appear.

• We get mentions of Meet The Press and the Today Show, as well as reporters Tim Russert and Diane Sawyer. There are also sightings of the C-SPAN and MSNBC logos.

• Leo's reference to Republicans "blocking our nominations since Roe" indicates the Roe v Wade Supreme Court decision exists in The West Wing universe.

• Former Senator Joe McCarthy is brought up by CJ, comparing Rep. Layton's list of NIH research projects to him and his lists of "known Communists."

• Debbie says she saw Judy Garland perform live at Carnegie Hall, which happened in April of 1961.

• We see a package of Quaker Oats cereal at the coffee stand near Josh and Donna's desks; CJ is seen with a Starbucks cup.

• Leo thinks Josh's idea to use recess appointments to the courts would cause a "Whiskey Rebellion of our own" in the Senate; Josh defends his idea with the actual recess appointments of Chief Justice Warren as well as Justices Brennan and Potter Stewart.

• Albert Einstein and President Thomas Jefferson are mentioned, as well as, of course, Galileo.

• Josh defends the worth of scientific research with no objective in mind with the discoveries of penicillin and the hair-growth drug Rogaine.

End credits freeze frame: The President and First Lady watching Ellie's press conference on television.

Previous episode: Full Disclosure

Next episode: The Supremes