Entry 040 - The West Wing 109 (The Short List)
In which privacy drops its pants
SERIES: The West Wing
EPISODE NUMBER: 109
TITLE: The Short List
PREMIERE: 24 Nov 1999
WRITING CREDITS: Aaron Sorkin & Patrick Caddell (teleplay); Aaron Sorkin & Dee Dee Myers (story)
DIRECTOR: Bill D’Elia
Up to this point, The West Wing had done a relatively good job of at least retaining the resemblance of realistic situations, small inaccuracies aside. That streak unfortunately goes out the window with this episode, as the A-plot stretches the boundaries of believability in a rather major way. It’s all in the name of good television, of course — which either intentionally or unintentionally serves to give Sam Seaborn an overdue character upgrade. Combined with the B-plot, however, this episode overall raises the stakes for our band of heroes considerably. Whether they’ll be able to rise to the occasion is left as an open question — for now:
C.J.: (V.O.) Previously on The West Wing…
Let’s step through the episode.
C.J.: Yes!
JOSH: It’s done.
C.J.: We did it!
JOSH: It is done!
C.J.: It’s done!
Do you suppose it’s done?
C.J.: We did it!
JOSH: I did it! C.J. was on the phone with her fingers crossed.
C.J.: All you did was just one phone call.
JOSH: It was a series of phone calls, which I masterminded. While I’m not one to be selfish about credit, I think it is important to know that it is done, and I did it!
Once again, the audience is deliberately left out of the loop — what are they celebrating exactly? “What do you care right now?” the writer responds.
DONNA: Don’t you want to know about the banging in your office?
JOSH: Banging in my office?
…
DONNA: Josh, there is a loud banging or thumping coming from the floor above your office.
JOSH: I didn’t notice.
DONNA: How could you not notice?
Man, come on, Donna — the man was quite clearly in a flow state, considering how he reacted to having “done it”. Get with the program.
JOSH: I’ve been on the phone for the last hour trying to seal the deal to fill a seat on the Supreme Court.
Oh, is that what that call was about? Surely it wasn’t necessary to speak in code like Josh was during the call…
SAM: Who da man?
TOBY: You da man.
JOSH: We da man!
(TOBY starts laughing)
DONNA: This is just gross.
Perhaps, but I think hearing Richard Schiff laugh cancels that out.
LANDINGHAM: Is it done?
JOSH: Well, that depends on your answer to this question, Mrs. Landingham — who da man?
LANDINGHAM: Excuse me, Josh?
(TOBY laughs again)
JOSH: Hmmm… who da man?
LANDINGHAM: You da man?
SAM/JOSH: We da man!
TOBY: You da men.
Must you exhibit this white boy behavior in front of Mrs. Landingham?
LEO: You got yourself a Supreme Court nominee, Mr. President.
BARTLET: This is yuge. [sic]
“Cut! Martin, please, that’s not how you pronounce ‘huge’, don’t give anyone any ideas!”
BARTLET: Which one of you is the man?
TOBY: On this one, we’d like to think of ourselves collectively as The Men, sir.
You make it sound considerably more dignified than your fellow Men did, Toby.
LEO: Let’s bring in the chairman and the ranking member from Judiciary, the leadership from both sides, and C.J. you should — where is C.J.?
C.J.: Right here.
LEO: (startled) Oh.
C.J.: Sorry.
LEO: You should wear a bell around your neck, you know that?
What the fuck?! You sure you want to treat your press secretary like cattle? Minus points for you, buddy.
TOBY: C.J. will let the press know that the President will introduce his nominee in an East Room press ceremony, Thursday 5pm.
JOSH: Can we do it on Friday and give ourselves more time?
TOBY: Thursday.
JOSH: Why?
SAM: Because that’s when people watch TV.
“But… this show airs on Wednesdays — wait, I’m not supposed to know that.”
NEW Dialogue Motif: Dinner Theatre™
TOBY: Josh, get me everything.
JOSH: We’ve vetted him two months.
TOBY: I’m gonna vet him four more days. I want to know every parking ticket. I want to know every girlfriend he stood up for dinner in 1953. Mandy, you’re gonna roll this guy out on a show that makes the Queen’s coronation look like dinner theatre. Sam, you’re gonna write the President’s introduction, you’re also gonna write Harrison’s remarks.
SAM: Harrison’s not gonna like that.
TOBY: You show him the robe he gets, he’ll like it fine.
“If he doesn’t, you can show him our dossier on the date he stood up in 1953.”
RETURNING Dialogue Motif: Gonna blame you
Previous instance: A Few Good Men
TOBY: C.J., no leaks — if the name of this nominee is leaked out before I want it to be leaked out, I’m gonna blame you, and you’re gonna find that unpleasant.
C.J.: I got to tell you something, Toby, you’re hot when you’re like this.
TOBY: I am gonna put Harrison on the Court! I swear to god I am!
Tempting fate, anyone?foreshadowing detected
RETURNING Verbal Tic: Résumé recitation
Running count: 12
JOSH: Peyton Cabot Harrison the Third — he sounds like he should be a Supreme Court Justice.
DONNA: It’s a good name.
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?
During his eight years in office, President Eisenhower had two attorney generals: Herbert Brownell Jr. and William P. Rogers. We’ll therefore have to file Mr. Harrison’s father under the same folder as Lionel Kaffee.
DONNA: Peyton Cabot Harrison the Third.
JOSH: That’s right.
DONNA: Jewish fella?
The hell?
JOSH: You’re not gonna ruin this moment for me, Donna.
“Oh, I think we both know from experience that’s not true.”foreshadowing detected
RETURNING Verbal Tic: You think?
Running count: 9
JOSH: You know what we’re finally gonna have?
DONNA: A WASPy old man in the Supreme Court?
JOSH: A smooth confirmation process.
DONNA: You think?
JOSH: It’s gonna sail.
DONNA: There’s many a slip twixt the tongue and the wrist, Josh.
“Cut! It’s between the cup and lip, not the tongue and the wrist! Actually, you know what, your way sounds better, never mind.”
NEW Plot Bunny: Mid-night incident at subordinate’s apartment
DONNA: Please don’t get your hopes up.
JOSH: Why shouldn’t I get my hopes up?
DONNA: Because when it doesn’t work out, you end up drunk in my apartment in the middle of the night and you yell at my roommate’s cats.
Donna has a roommate with cats — got it, saving that information for later.
NEW Plot Bunny: Ceiling falls on desk
JOSH: Nothing bad is gonna happen this week.
DONNA: Exercise cautious optimism.
JOSH: Look, there is no reason —
(ceiling chunk falls down onto JOSH’s desk)
JOSH: (beat) Well… okay.
It’s a sign from the universe, Josh, take it while you can.
BARTLET: You’re too young to retire, Joseph.
CROUCH: You’re an excellent liar, Mr. President.
BARTLET: (laughs) Yes, sir.
You don’t know the half of it, Mr. Justice.foreshadowing detected
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.
BARTLET: (clears throat) Joseph —
CROUCH: The middle of the road — nothing but a long line painted yellow.
BARTLET: Excuse me, sir —
CROUCH: I wanted to retire five years ago — but I waited for a Democrat. I wanted a Democrat — hmmph — and instead I got you.
RETURNING Verbal Tic: How ya doin’
Running count: 28
DANNY: How ya doin’?
C.J.: I’m doing fine, Danny.
DANNY: Is it gonna be Harrison?
C.J.: Why, why, oh why do you ask me questions that you absolutely, positively know I’m not gonna answer?
DANNY: It’s a good conversation starter.
C.J.: I can’t go out on a date with you, Danny.
DANNY: Who asked you?
C.J.: Okay.
DANNY: You think Harrison is gonna be a good Justice?
C.J.: Danny.
DANNY: You see what I did there?
C.J.: Yeah.
DANNY: I tried to trick you into confirming it was Harrison.
I see we have enough lampshades to go around.
CROUCH: I’ve served on this bench for 38 years. I took my seat the year you began college.
Hold on…
So… Martin Sheen would have been 59 at the time of filming. Crouch’s numbers indicate President Bartlet is instead 56 years old. The backaging of characters continues, it seems.
CROUCH: Take the next few days with your staff and give Mendoza the consideration he deserves.
BARTLET: Joseph, when the next seat opens up, I promise [you I will give —]
CROUCH: [When the next seat] opens up, you’ll be writing your memoirs.
BARTLET: In three years, I would hope to be [running for reelection.]
WARNING: CONTINUITY ERROR DETECTED!!
Are you sure about that, Mr. President? You’re certain you don’t want to bring someone else into the conversation?
BARTLET: You know, I imagine the view from your largely unscrutinized place in history must be very different from mine… but I remind you, sir, that I have the following things to negotiate — an opposition Congress, special interests with power beyond belief, and a bitchy media.
CROUCH: So did Harry Truman.
BARTLET: Well, I am not Harry Truman.
CROUCH: Mr. Bartlet, you needn’t point out that fact.
“Well, you’re no Earl Warren, so let’s call it even.”foreshadowing detected
BARTLET: It’s ‘Doctor Bartlet’, your honor.
RETURNING Verbal Tic: What do you want from me
Running count: 8
DANNY: What do you suppose they’re talking about in there?
C.J.: The President and Justice Crouch are old friends.
DANNY: The President and Justice Crouch can’t stand each other.
C.J.: The man’s retiring today, it’s a courtesy call. What do you want from me?
DANNY: Dinner and a movie.
Lay off already, Danny boy.
NEW Dialogue Motif: You’re killing me
DANNY: You think Crouch is pissed because the President has already settled on Harrison?
C.J.: Danny.
DANNY: I did it again!
C.J.: Yes.
DANNY: But you know what you did?
C.J.: What?
DANNY: You outfoxed me.
C.J.: You’re killing me, you know that, Danny?
It was at this point that the Secret Service tackled Danny — wait, nope, still not the Ford administration.
RETURNING Dialogue Motif: If anything should happen, it should happen to you
Previous instance: Sports Night 120
JOSH: I really think if big chunks of the ceiling are gonna fall on anyone… I don’t know…
DONNA: (beat) What?
JOSH: It should be you.
DONNA: Ugh — I knew you were gonna say that.
How very genre savvy of you, Donna.
RETURNING Sorkin Name: Pete(r)
Previous instance: Sports Night 110
RETURNING Sorkin Name: Lillienfield
Previous instance: Malice
MANDY: Why is Peter Lillienfield holding a press conference?
JOSH: Who cares?
Tempting fate, anyone?foreshadowing detected
NEW Dialogue Motif: Keep your pants on
JOSH: Donna! Where’s my east Asia memo?!
DONNA: (O.S.) Right here!
…
JOSH: That’s okay, Donna, I’ll just come and get it myself!
DONNA: (O.S.) Keep your pants on, Josh! I’m on my way!
“Josh has been taking his pants off again? That’s just something he does.”foreshadowing detected
MANDY: I’m just saying that we don’t need any surprises today.
JOSH: We’re not gonna have any surprises today.
MANDY: I’m putting on a show and I don’t want to get upstaged.
JOSH: You’re not gonna get upstaged.
You wanna walk under a ladder while stepping on every crack while you’re at it, Josh?
JOSH: You should be nice to me. I could be dead, you know.
DONNA: I don’t have that kind of luck.
You know he can fire you, right?
TOBY: I would like you to play out that as a lifelong Democrat, he clerked for a Republican. I would like you to play down that he’s never written a judicial opinion on abortion or revealed his thinking on Roe.
Airdate: 24 Nov 1999 — (heavy sigh)
SAM: What’s this?
TOBY: Lillienfield’s talking about something that’s bothering him today.
SAM: What?
TOBY: I couldn’t possibly be less interested.
That’s about to change soon, buddy.
LILLIENFIELD: (on TV) Gone are the days of the best and the brightest. Stained, I believe, are the legacies of the great White House staffers. Names like Schlesinger, Sorenson, Rumsfeld, and Persons have been replaced by a roster of Ivy League liberals and Hollywood darlings…
Time for a cross-reference!
- Schlesinger: James R. Schlesinger, Secretary of Defense for Nixon and Ford, Secretary of Energy for Carter (the first to hold the position)
- Sorenson: Ted Sorensen, White House Counsel and speechwriter for Kennedy and Johnson
- Rumsfeld: Donald Rumsfeld, Secretary of Defense for Ford (after Schlesinger)
- Persons: Wilton Persons, White House Chief of Staff for Eisenhower after first serving as the first White House Director of Legislative Affairs
The inclusion of Schlesinger and Rumsfeld could perhaps be considered a continuity error, given what gets established of the timeline of the West Wing universe later on, but I’ll reserve judgement on that one.
LILLIENFIELD: … one in three of who, one in three use drugs on a regular basis — and in case there should be any confusion about my meaning, I’m not talking about aspirin or decongestants.
“I’m talking tractor fluid and cough syrup!”foreshadowing detected
LEO: Where does he get these stats?
C.J.: Leo —
LEO: I mean where does he pull them from?
C.J.: Out of the clear blue sky…
That’s considerably more diplomatic than I’d put it.
RETURNING Verbal Tic: This isn’t happening
Running count: 3
MANDY: This isn’t happening to me.
Damnit, Mandy, you’re not a White House staffer! It’s not happening to you, it’s happening to everyone else!
SAM: Is it possible for Peter Lillienfield to be a bigger jackass? You think if he tried hard, there’s room for him to be a slightly bigger horse’s ass that he’s being right now?
C.J.: At some point, you hit your head on the ceiling, don’t you?
SAM: I think there’s unexplored potential.
You would know, wouldn’t you, Sam?
JOSH: Five White House staffers in the room — I would like to say to the one-point-six of you who are stoned right now that it’s time to share.
MANDY: (through others’ laughs) This isn’t funny, Josh.
JOSH: Mandy, if you can’t laugh at this, then you’re just not having enough fun in show business.
Anyone still need more evidence Mandy doesn’t belong here? I’ll wait.
NEW Dialogue Motif: Reach for the stars
SAM: I think if he put his shoulder into it, he could be a slightly bigger gasbag.
JOSH: Yeah.
SAM: You know, if you really reached for the stars…
You put your shoulder into reaching for the stars? That seems counterproductive, physically speaking…
TOBY: There’s no way you saw this coming?
LEO: Toby —
TOBY: Leo, I know I’m in your office, forgive me, but nobody saw this coming?!
C.J.: Yeah, I can’t believe my psychic didn’t tell me, Toby. Rest assured, I’m gonna get my twenty bucks back.
(beep) Sarcasm Self Test complete! (beep)
NEW Dialogue Motif: Masterpiece Theatre quip
JOSH: Categorically deny it and move on.
MANDY: She can’t.
C.J.: I can’t.
JOSH: Why not?
C.J.: Because more than thirteen hundred people work for the White House, Josh. I go into the Press Room and categorically deny that anyone uses drugs, and it turns out that three guys in the photo lab blew a joint over the weekend, which is not, like, out of the realm of possibility, and my next question is —
MANDY: But you categorically denied it, now you admit there are three.
C.J.: Yes, well, I categorically deny that there are any more than three.
MANDY: But now it seems that the assistant to the deputy director of White House beverages —
JOSH: Alright.
MANDY: — is confessing to a life as a closet junkie.
C.J.: Yes, and I understand she’s selling her story to Random House for a middle six-figure advance.
TOBY: Alright, are we done with Masterpiece Theatre?
You’re lucky it wasn’t pledge week, Toby.
TOBY: C.J., go do your briefing. The President paid a courtesy call on Crouch this morning. We got some exciting names on the short list. “Is it Harrison?” We’ll introduce the nominee Thursday five o’clock. This business with Lillienfield —
C.J.: I’ve heard about it, and I’d like the chance to see it before I comment.
TOBY: Is the President aware?
C.J.: We’d like to keep these things off the President’s desk until we measure what, if any, credibility —
TOBY: Good girl.
She’s not a girl, Toby, she’s a WOMAN!
TOBY: Go back to work, Mandy.
JOSH: No, hang on a second, I’d wanna hear what —
TOBY: Hey! Go back to work.
MANDY: Lillienfield is walking on our stage, and he’s not gonna get off until he gets off, is what I’m saying.
JOSH: We are not taking drug tests.
MANDY: Why not?
JOSH: Because we’re not!
MANDY: Toby, let’s end this.
The contrast continues: Mandy is thinking in terms of a mono-focused “stage” while everyone else are wanting to get on with actual work and keeping the new extracurricular nonsense on a separate track. What that separate track looks like, of course, is also a point of contention:
JOSH: I’m not gonna be the Internal Affairs cop around here.
TOBY: Yes, you are.
JOSH: You want to know who’s doing what around here, you ask them yourself!
TOBY: This isn’t the time, Josh. We’re taking water over the side.
JOSH: And I’m not indifferent to that, but there’s a principle here [that you —]
TOBY: [No, there’s] not, not this week. We’ve been doing this for a year, and all we’ve gotten is a year older. Our job approval’s 48%, and I think that number’s soft, and I’m tired of being the field captain for the gang that couldn’t shoot straight!
Hold up — you’re the field captain? But Josh is the deputy chief of staff, and you’re the communications director. If we’re assigning you field captaincy status, then Josh is not in your “gang”. He’s more like the head of the political party arm of the operation, like Sinn Féin to the IRA.
SAM: Hello, this is Sam Seaborn. … What’s your name? … I’m not a cop.
Huh? What did the person say on the other end to make Sam think it necessary to disabuse them of the notion of his being a cop? You don’t really expect the person being called to have to say that considering the caller should already know whom they called.
RETURNING Dialogue Motif: Just what the doctor ordered
Previous instance: Sports Night 203
LEO: Ritter says we’ll get unanimous approval out of committee and ninety votes in the Senate.
BARTLET: That’s a blowout, Leo.
LEO: Mm-hmm.
BARTLET: Just what the doctor ordered.
BARTLET: What is going on with Lillienfield?
LEO: You’re staying out of it.
BARTLET: Fine.
The pass blocking theme continues: Leo is quick to keep the nonsense from those below him off the President’s desk, much like he’s also quick to keep the nonsense from the President off the desks of those below him (e.g. six episodes ago).
BARTLET: We looked at everybody, right?
LEO: Sir?
BARTLET: The short list, we looked at Mendoza?
LEO: We looked at him.
BARTLET: Leo —
LEO: We fixed on Harrison.
BARTLET: Yeah, you’re right.
That’s the last of it, right?
BARTLET: ‘Morning, Toby.
Never mind.
BARTLET: Do this for me, put together some information on Roberto Mendoza.
TOBY: Sir… it’s natural to have second thoughs, but -
BARTLET: No, I just want to be able to know something. There’s gonna be a lot of questions. I don’t want it to be like, “we had an Hispanic on the short list.”
That’s… plausible enough — or at least plausible enough for Toby not to ask the President how his courtesy call on Crouch went.
SAM: I got a phone call before from a guy with some information. I just picked it up. I read it on the way back. It’s not good.
TOBY: Is it the drugs?
SAM: No.
TOBY: What is it?
SAM: It’s Harrison.
You’ve been vetting him for two months and something this supposedly damaging is only just now coming into light? Herein begins the stretch in believability…
SAM: It’s called an unsigned note. Every member of Law Review is required to prepare one. [It’s like an article —]
TOBY: [I know what an unsigned] note is.
Hey, come on, Toby, we don’t! Let him finish!
SAM: It’s forty or so pages, well researched, footnoted, and revised with faculty supervision, and it’s published.
TOBY: Without the names.
SAM: Without the names.
Thank you, Sam — now that I know what an unsigned note is, I’m less skeptical about the issue’s only just coming up now. That Danny has been hot on Harrison means his name is only just now being leaked to people who would be in a position to know about the note.
TOBY: How do we know Harrison —
SAM: Toby!
TOBY: What, I’m supposed to just trust the guy on the phone?
SAM: I spent the last three months reading everything Harrison’s written, from decisions to memos to amacus briefs, Toby. He’s the author of the unsigned note.
Sam here casually flexes the power of being able to tell who wrote something strictly off the style of the writing, something I’m sure Mr. Sorkin himself is quite fluent — and something that feels just a little meta for me to point out as well…
DONNA: You shouldn’t feel uncomfortable about interviewing me.
JOSH: I met you, I talked to you, I hired you.
WARNING: CONTINUITY ERROR DETECTED!!
This line from Josh implies there was a standard hiring process for Donna, which is… not exactly true, to understate it, as we’ll learn in a later episode.
JOSH: Donna, I’ve seen your records.
DONNA: (beat) I know.
JOSH: You need to learn that ‘no parking’ means no parking.
Bob Rumson’s mother has an FBI file, Donnatella Moss has a local police file. There’s a both-parties joke in here somewhere…
MANDY: We have everyone take a drug test and be done with it.
JOSH: What makes you think that everyone here can pass a drug test?
MANDY: The ones who can’t already know it and will quietly resign.
JOSH: (laughing) Oh, okay, problem solved.
That sarcasm is well-deserved — in what fucking universe does Mandy expect such resignations to be even remotely quiet? It would be nowhere near quiet should a considerable portion of the federal executive work force leave their jobs, she should know better.
… Shit, I didn’t even mean to make that topical.
MANDY: What is wrong in this day and age with demonstrating that the White House is drug-free? What is wrong with giving people that comfort?
JOSH: I would think that in this day and age, people would be more comfortable knowing that they will not now, nor will they ever be forced to turn over evidence against themselves…
Well, I personally would think that in this day and age, people wouldn’t have to be assaulted by people using the phrase “in this day and age” unironically.
JOSH: So what do you think’s really going on here?
Detective Josh on the case?
REPORTER: Is there any reason to believe that White House staffers regularly use illegal drugs?
C.J.: For those who didn’t understand me the first nine times, we are looking into this.
Uh oh.
STEVE: C.J., would you forgive a blunt question?
Tee hee — ‘blunt’.
NEW Sorkin Player: Kris Murphy
Character: Katie Witt
KATIE: It’s been 24 hours since Congressman Lillienfield made his accusations, C.J. When is the White House —
C.J.: We got over thirteen hundred people on the payroll…
Thirteen hundred people in the White House? How in the hell are they fitting that many people in here? I know there’s OEOB for executive staffers, but Lillienfield’s accusation was specifically for White House staffers. We don’t even see the second floor of this West Wing until the fourth season, I don’t think, and it’s not like the real life one is all that spacious either. What am I missing?
C.J.: Set fire to the room, do it now.
“It survived it the last time!”
RETURNING Verbal Tic: How ya doin’
Running count: 29
DANNY: How ya doin’?
C.J.: What do you want?
Season 1 briefing room location entry #5: downstage right (relative to lobby entrance) — so much for production making up their minds, I guess.
C.J.: I left my notebook somewhere.
…
DANNY: I’m here because there’s a basketball team called the New York Knickerbockers who are playing in town tonight.
Season 1 briefing room location entry #6: far upstage left (relative to lobby entrance) — what in the fuck?! The briefing room is literally located in two different places in the same scene! What were these production folks smoking?
C.J.: I don’t have time to go to a basketball game!
DANNY: Neither do I — which is why I thought we could watch it in your office while I explain it to you in a patronizing manner, ‘cause I know that’s something women usually like.
Okay, you know what, fuck you, Danny, I don’t like you anymore.
DANNY: Josh, information I get I have to print.
JOSH: Do you have any information?
…
DANNY: What kind of information?
JOSH: You know what kind of information.
DANNY: Hey!
JOSH: You know no one knows where I got it.
DANNY: Why are you allowed to take the high road and I’m supposed to hand over any information I get?
Information, information, information, information…
DANNY: Lillienfield’s a jackass, but he’s not stupid. If he’s talking, he’s got something.
JOSH: What?
DANNY: Whatever it is it’s small potatoes, just enough to get the rock rolling down the mountain.
You use small potatoes to get rocks rolling down a mountain? You maybe want to retry that without the mixed metaphor?
DANNY: He’s not gonna waste it on a done deal. He’s after something better.
JOSH: (beat) Okay… thanks.
From his reaction here, Josh seems to know what that “something better” is — yet another instance where the characters know more than the audience to start.
JOSH: C.J. likes Goldfish.
DANNY: What?
JOSH: She likes Goldfish — can’t get enough of ‘em.
DANNY: Thanks!
Place your bets on whether Danny caught the verbal capitalization.
BARTLET: (reading) “I join Judge Black, insomuch as while enjoying my privacy, I am compelled to admit that government has a right to invade it unless specifically prohibited by some specific Constitutional provision.”
And herein truly begins the stretch in believability — there’s simply no way a Democratic administration would have landed on a Supreme Court nominee choice who exhibits such originalist thinking. To Mr. Sorkin’s credit, he at least tried to explain it away, but to no avail:
BARTLET: We spend two months vetting our homerun nominee, he doesn’t believe in a privacy guarantee, and it never came up?
TOBY: It was simply never an issue in any order to be handed down…
Even if the man never had privacy as an issue on his docket, the originalist way of thought presented in the unsigned note cannot possibly have been hidden all this time through other issues at hand. Consider, for instance, how the issue of the census was treated three episodes ago — how do we suppose Harrison would rule on that?
TOBY: I don’t think we can necessarily hold a 55-year-old man responsible —
SAM: Toby —
TOBY: — for something he wrote when he was 26.
SAM: We’re not gonna be able to hold him responsible if we put him on the bench — where I promise you, this issue’s gonna come up!
Damnit, I already cited the airdate earlier — I promised myself I’d only do it once per entry.
BARTLET: I wanna meet Mendoza.
LEO: (beat) Yes, sir.
Really? No questions asked? No probing on second thoughts? … Aight, well, he serves at the pleasure of the President, I guess.
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: (beat) Is there such a thing as the President’s —
MANDY: It’s the best I could do on short notice, Toby.
Why was Mandy, a contractor from the DNC, put in charge of bringing in Mendoza for an official White House meeting? (sigh) At some point, I need to stop asking questions like that…
BARTLET: When I was 26, I wrote a paper supporting the deregulation of Far East trade barriers — nearly got thrown out of the London School of Economics.
What? Why would calling for free trade get you kicked out of the London School of Economics?
JOSH: When were you gonna tell me this?
TOBY: Number one, I don’t report to you.
You don’t say! I don’t suppose you’re cognizant of the other way around as well now? You seemed to think otherwise earlier.
JOSH: When did we get the idea that Harrison was our guy? When we used to talk, it was never Harrison.
Uh… really? I supposed we’ll just have to take your word for it there, because this is the first indication we’ve had that you’ve had any reservations on the man — indeed, you were openly citing his credentials earlier.
JOSH: I was interrogating this intern from the Legislative Liaison’s office, and she broke down crying while telling me about a bong she had made out of an eggplant.
LEO: You can do that?
JOSH: I used to use a potato.
LEO: You’ve always been industrious.
I’m clearly not a stoner, because I listen to this exchange and wonder how the hell either an eggplant or a potato can retain a firm enough shape to serve as a bong after being sufficiently hollowed-out. Maybe the oregano fumes help?
JOSH: Leo, you know that the worst kept secret in Washington… is that you’re a recovering alcoholic, right?
Well, that and the JFK-LBJ dynamic between the President and the Vice President, but I’ll grant you the premise, Josh.
JOSH: Leo, you’re… Boston Irish Catholic. Back there and back then, a drinking problem wasn’t a problem. This isn’t what he’s after. (beat) Were you maybe into something that wasn’t so acceptable?
LEO: (pause) Pills.
JOSH: Were you in treatment?
LEO: Sierra Tucson, six years ago.
Woah, hold on — you went all the way to Arizona to beat a drug habit? And your wife didn’t want to divorce you until six years later? Holy hell, something’s not right here…
LEO: Records kept by these facilities are confidential, Josh.
JOSH: He’s got ‘em.
Wait, what? How would you know that, Josh? You only just heard from Leo how he went to Sierra Tucson, there’s no way you could possibly have gathered whether records from the facility have been obtained by another party without raising a stink.
NEW Dialogue Motif: (Small) Fraction of a Man™
JOSH: You’re Leo McGarry. You’re not gonna be taken down by this… small fraction of a man. (stands and makes for the door) I won’t permit it.
Sunglasses or no, I can still hear Roger Daltrey in the background here.
HARRISON: Judges are bound to interpret the Constitution within the strict parameters of the text itself.
No, seriously, how the fuck was this guy’s philosophy on Constitutional interpretation not even remotely revealed through the multi-month vetting process of this guy by a Democratic White House? This shit doesn’t make sense.
SAM: They just fought a revolution, they had no question of their freedoms. The Bill of Rights was meant to codify the most crucial of those rights, not to limit the others.
HARRISON: I do this for a living, Mr. Seaborn.
SAM: So do I, your honor.
Do you? You’re currently an employee of the executive branch, and your previous experience is limited to liability insurance law, not to jurisprudence. I’m not saying you aren’t correct to grill Harrison, mind you, just… maybe be more accurate while you do it?
BARTLET: So you would have no objection to the state of New Hampshire passing a law banning use of cream in coffee?
HARRISON: I would have strong objection, Mr. President, as I like cream as well, but I would have no Constitutional basis to strike down the law when you brought your case to the Supreme Court.
BARTLET: As I lose the votes of coffee drinkers everywhere.
Levity attempt status: FAIL
C.J.: The word ‘subpoena’ appears in the lead in every story in this morning’s papers.
DANNY: I know.
C.J.: Not yours.
DANNY: That’s just ‘cause I couldn’t spell it.
DANNY: Josh said you liked goldfish.
(C.J. starts laughing uncontrollably)
C.J.: (between laughs) The crackers, Danny — the cheese things that you have at a party?
DANNY: Ah, well… you know what, I’m not a hundred percent sure I was supposed to know that.
Really? Not even with the context clue of “can’t get enough of them”? You think C.J. regularly buys goldfish as pets? With her career path? Hell, maybe he can’t spell subpoena…
DANNY: Keep your head in the game.
… What? Wh-what are — why did you say that?
SAM: In 1787, there was a sizeable block of delegates who were initially opposed to the Bill of Rights. This is what a member of the Georgia delegation had to say by way of opposition — “if we list the set of rights, some fools in the future are going to claim that people are entitled only to those rights enumerated and no others.” So the Framers knew —
HARRISON: Were you just calling me a fool, Mr. Seaborn?
Are you kidding me? Are you even paying attention, my guy? Listening comprehension isn’t your strong suit, I guess…
TOBY: There are natural laws, judge.
HARRISON: I do not deny there are natural laws, Mr. Ziegler, I only deny that judges are empowered to enforce them.
TOBY: Then who will?
Please don’t say ‘god’, please don’t say ‘god’…
RETURNING Dialogue Motif: This sideshow is over
Previous instance: Malice
HARRISON: That’s not up to me — and this sideshow is over. With all due respect, Mr. President, I find this kind of questioning very rude.
SAM: Well, then you’re really gonna enjoy meeting the U.S. Senate.
I don’t know, man, the way they rubberstamped some of the more recent Court nominees…
HARRISON: We all know you need me as much as I need you, I read the same polling information you do.
What the fuck?! What is a member of the judiciary doing citing polling data? Get him the fuck out of here!
SAM: Put him on a bus.
What he said!
TOBY: Mr. President, if this is really about abortion, he already [told us —]
SAM: [It’s not just] about abortion, it’s about the next twenty years. Twenties and thirties, it was the role of government; fifties and sixties, it was civil rights; the next two decades are gonna 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 a will to be free, what could be more fundamental than this?
Well, it’s been over two decades since this episode aired, so let’s tally up the scorecard. On the front of cell phones, Riley v. California and Carpenter v. United States established cell phone searches require a warrant. People have argued that the latter applies to internet history as well, but it’s not well established, and further case law is thin on the ground. As for health records and who’s gay or not, that’s been more established by legislative action than by judicial action, with HIPAA having been passed three years before this episode aired and Don’t Ask Don’t Tell being repealed by an act of Congress in 2011. It’s been a mixed bag, we’ll say — especially considering everything else the Court has been doing as of late…
MANDY: They’re meeting with Mendoza.
JOSH: Yeah.
MANDY: Yeah, and I’m just gonna go kill myself now.
Fuck you for even joking about that, Mandy.
JOSH: You think Mendoza would be a bad justice?
MANDY: I think Mendoza’d make a great justice, I think he makes a lousy nominee.
Why is she still here?
RETURNING Verbal Tic: Résumé recitation
Running count: 13
MANDY: Harrison went to Walnut Park Country Day, Phillips Exeter, and Princeton undergrad and Harvard Law. Mendoza attended P.S. 138 in Brookyln, City University of New York, and the New York Police Academy. Harrison clerked for Warren Berger. Mendoza —
JOSH: New York City Police Department ‘65 to ‘76, Assistant District Attorney Brooklyn ‘76 to ‘80, Assistant U.S. Attorney Eastern District, Federal District Judge, Eastern District…
That he was able to recite all of that off the top of his head lends at least some credence to his offering earlier that Harrison wasn’t even in the discussion until recently. If only he’d pressed harder at the time…
RETURNING Verbal Tic: Let me tell you something
Running count: 15
JOSH: … let me tell you something, Mendoza went to law school the hard way. He got shot in the leg, and when they offered him a hundred percent dispensation, he took a desk job instead and went to law school at night. He is brilliant, decisive, compassionate, and experienced, and if you don’t think that he’s America’s idea of a jurist, then you don’t have enough faith in Americans.
… No comment.
MANDY: This is not gonna be an easy one, and if all hell breaks loose over Lillienfield, it could honestly cripple us for a year, maybe more.
JOSH: (sigh) Well, I mean… just the Law of Large Numbers says we got to win one one of those days, right?
That’s not how the Law of Large Numbers works, Josh! Ah, hell, no one cares…
MANDY: I still hate you.
Who’s Chu? … Sorry, force of habit.
HARRISON: You look very familiar, is it possible we’ve met?
CHARLIE: I caddied for three summers at Sandy Hook, sir.
HARRISON: Ah — of course.
CHARLIE: Charlie Young.
HARRISON: Charlie, of course.
CHARLIE: I’ll get your coffee.
Um… okay, thank you for that absolutely unnecessary bit of backstory. Let’s try that again sometime.sarcasm detected
SAM: Judge Mendoza, I have a note that your rulings have been upheld by the Court of Appeals more than any other district judge in the country.
MENDOZA: Well, that’s what comes from being right most of the time, I guess.
Aight, we got a live one here.
LEO: There’s gonna be trouble.
BARTLET: Lillienfield?
LEO: Yes, sir.
BARTLET: He knows?
Oh, okay — I guess shielding the President from the mess was unnecessary, it seems he already knew what was going to happen.
BARTLET: Did you have a drink yesterday?
LEO: No, sir.
BARTLET: Are you gonna have one today?
LEO: No, sir.
BARTLET: That’s all you ever have to say to me.
LEO: (beat) You know it’s gonna make things very hard for a while.
BARTLET: You fought in a war, got me elected, and you run the country. I think we all owe you one, don’t you?
So not only have we heard reverence for Leo McGarry from his subordinates — Sam last episode, Josh this episode — we’ve now witnessed similar reverence from his boss. If it weren’t for his getting divorced, it’d be easy to paint him as a Marty Stu, but that his flaws don’t tamp down people’s respect for him strongly indicates this is a man to follow, for sure.
TOBY: Judge, without knowing details of special circumstances, what would you say of someone being fired for refusing to take a drug test at the order of the President?
MENDOZA: Without details of special circumstances?
TOBY: Yes, sir.
MENDOZA: Without showing cause, I would say that the order constitutes an illegal search, and I would order that the employee be reinstated.
BARTLET: (beat) Toby?
TOBY: Sold.
Nope, I’m sorry — are we really supposed to think Harrison wouldn’t have given the same answer? The Fourth Amendment literally starts out with “the right of the people to be secure in their persons”, so I don’t think Harrison would have considered a literal invasion of the person themself outside of the protections of that amendment. We missed a lot of questions before this one, I hope.
BARTLET: 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.
BARTLET: Well, then this is gonna knock your socks off.
“But that’s physically impossible, sir. … Okay, I’ll shut up.”
BARTLET: Tomorrow evening at five o’clock, I am naming you as my nominee to be the next Associate Justice of the United States Supreme Court. You were not the first choice, but you are the last one, and the right one. (beat) Will you accept the nomination?
MENDOZA: (beat) With honor.
Damn, he didn’t even have to think about it — and he even professed to being surprised beforehand!
BARTLET: What do you say, Leo? You up for a good fight?
LEO: I believe I have one in me, yes, sir.
BARTLET: Good — let the good fight begin.
The awkward standing around after this moment is necessary to establish how utterly clichéd what the President just said was and how everyone knows it.
Well, it is with a heavy heart that I say this episode of The West Wing is the first to truly swing and miss. It’s set up to be an important episode, for sure, but its overall framing is not all that well thought-out, despite supposedly being partially based on the events leading to Ruth Bader Ginsburg’s nomination. The episode also appears to have been set up as Sam’s first honest foray into being the man of the hour, but his self-assertion ends up getting lost in the sauce fairly easily. Josh’s haphazard trail of sussing out Lillienfield’s intent also feels underdeveloped, as satisfying as it is to see everyone step up for Leo. Most annoying of all for me, however, is Danny’s behavior throughout the episode, which borders precariously on straight-up harassment. This is one of those episodes of television where you shouldn’t be thinking too hard about it as it happens, I suppose.
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