Walking And Talking And Yelling At Clouds: The Supremes

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.