The West Wing S01E09: The Short List


Watching the antics of the team in celebrating the assumed nomination of Harrison Peyton III to a coming Supreme Court vacancy seemed hubristic when I first watched the episode, and downright juvenile today. Nevertheless, it conveys something of the harrowingly difficult process associated with Supreme Court appointments.

The nomination story is definitely the most important dramatic element of this episode, and makes it one of the most impressive in the entire seven seasons. Before returning to that storyline, though, let’s have a look at some of the sub-plots, at least one of which is not to be sneezed at either in the writing excellence stakes.

Danny Concannon …

Journalist Danny Concannon’s clandestine cooperation with Josh Lyman in discussing what Congressman Peter Lillienfield has when he makes allegations of widespread drug use in the White House exposes Concannon as favourably inclined to the Bartlet administration personally, and wrong-foots him: Lyman tells him CJ Cregg likes goldfish. When he turns up to Cregg’s office with a live fish in a bowl of water there is hilarity about her actual liking for cheesy crackers shaped like fish.

Concannon's gift to Cregg: a goldfish.
Concannon’s gift to Cregg: a goldfish.

Did Lyman set him up by not explaining the goldfish? Was it Lyman’s way of rewarding a partial insight by the cautious Concannon with another partial insight? If so, it is an undergraduate playfulness with pranks that I never found nearly as charming or endearing as some others, but that obviously sits well with people trying to seem smart in relatively constrained, rule-bound settings.

It doesn’t seem to matter. Cregg accepts the gift and offers Concannon an affectionate kiss on the cheek, which seems to be much more significant to Concannon than was intended; look at the close-up on actor Busfield and the face he puts on for the shot.

More grist for the romance angle that seems so all-important in television drama. But so crudely done one has to wonder whether Sorkin was awkward with women, or whether studio bosses wanted to impose a Hays Act veil of hypocrisy on the portrayal of adult relationships.

If there’s a deeper meaning to the ‘goldfish bowl’ gift, as some people have speculated on over the years, I don’t readily see a single one more credible than any other, which makes them all on par with conspiracy theories, and ‘literal’ interpretations of Revelations.

… Donna and Josh …

The dynamic between Lyman and his principal assistant, Donnatella Moss, is a little different. It is played not so much for romance (at this stage) as a kind of Laurel and Hardy routine in which Moss gets to underline irony, pathos, and contradictions in Lyman’s personality, professional endeavours, and the master-servant relationship played out mockingly between them.

I suspect that this was the most successful formula Sorkin established for character interactions, displacing even McGarry’s relationship with the president as an anchor for the show, season after season. Right to the end, when the writers took that theme to its logical conclusion in a surprisingly satisfying conclusion to several nail-biting episodes culminating in the tragedy of John Spencer’s death, which was also the death of Leo McGarry.

… witch-hunting …

Lynch mob atrocities as a theme is older than the USA itself, having been imported in the 17th century by the first European arrivals, as if to ensure all the worst Old World traits should have a comfortable new home. It is a perennial political sport that keeps raising its ugly head because it is such an easy pursuit for stupid people harbouring ugly thoughts.

One of the least explicable targets for with-hunting is intoxication. I have never quite understood why there is such a heavy snobbery about drunks and stoners. Proportionately they do rather less harm than any number of sober accountants, ‘journalisto-amanuenses’, law enforcement types, lawyers, or politicians. In an American context, and in the Zeitgeist of the 1990s, it makes even less sense, since the entire country was propped up by the cocaine economy, and most of the public eminences indulged liberally in both alcohol and drugs.

Lyman won't let 'a small fraction of a man' destabilise McGarry.
Lyman won’t let ‘a small fraction of a man’ destabilise McGarry.

I guess it is an expression of old-style killjoy misanthropy given a fake respectability by tight-arsed self-denialism, seen by many simple-minded people as a hallmark of religious virtue. That last aspiration is, in itself, an indictment of the intoxication taboo, coming, as it does, from the least trustworthy people on the planet.

Nevertheless, it is a real phenomenon. And not just in the USA. It applies to, and emanates in particular from the most dishonourable professions, arrogating to themselves the nominal virtue of honour: senior public positions (and the almost nonsensical extension of this pathology into sports).

When Congressman Peter Lillienfield, described by Josh as a ‘hairdo’, pulls out of his arse the accusation that one in three White House staffers uses drugs, it becomes a big deal. That’s almost an indictment of the Bartlet White House staffers – our protagonists.

And then it becomes a headache. How do you deny that thousands of employees (3,500, not the fifteen hundred repeatedly referred to by Cregg) do not use drugs without running the risk of a ‘gotcha’ moment. That moment when some past drug record, or recent driving under the influence arrest, is then given undeserved prominence in Schadenfreude media coverage? In that sense Toby Ziegler’s demand that staff be interviewed to confirm or deny their habits seems unreasonably intrusive and labour-intensive, to say nothing of resembling the very worst aspects of totalitarianism. The Ziegler profiled by Sorkin so far just wouldn’t do such a thing. he’d have dismissed it as an issue with an annoyed wave of his arm and some clever, vexed words.

That Ziegler, like me, would see no epistemological difference between the question: ‘Are you now or have you ever been a member of the communist party/any party but mine/any church but mine/any social and sexual orientation but mine?’ and the question: ‘Do you now or have you ever used drugs?’

It is greatly satisfying to see the issue resolved on a note of principle when the following exchange takes place between Ziegler and the prospective Supreme Court nominee, Judge Roberto Mendoza:

ZIEGLER: Judge, without knowing details of special circumstance, what would you say of someone being fired from refusing to take a drug test at the order of the president?

MENDOZA: Without details of special circumstances?

ZIEGLER: 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.

The appropriate response from the White House, or any organisation, should always be to challenge the accuser to provide evidence or shut the fuck up. And to answer media questions by dismissing unsubstantiated allegations as unworthy of pursuit at cost to the public. Perhaps adding that witch-hunting impulses are unworthy traits in journalism. And finally, when pushed to it, by reference to the principle enunciated by Mendoza in the quote above, as a patronising sermon delivered to make the gotcha journalists feel like the turds they are.

It’s a principle that stands up pretty well even in jurisdictions not subject to the American constitution, or any re-interpretation of it based on manifest cretins professing to know the minds of smart people dead for 250 years.

It could be argued forcefully that Sorkin’s own habits with intoxicants gives him a skewed perspective on the issue, and yet, to dismiss him that way is also to dismiss the proper debate about the rôle of the state in regulating private personal conduct – for any reason at all, but particularly for reasons predominantly based on doctrinaire conceptions of morality. So, in the case of Sorkin vs the People, I would always ask why anyone should be persecuted for intoxication UNLESS criminal liability or negligence also applicable to un-intoxicated people can be the proven consequence of intoxication. In which case a crime or misdemeanour exists regardless of intoxication, and the fact of it merely establishes a degree of culpability.

But that’s me proposing a distinctly political position, and I should declare my own fondness for beer, coffee, whiskey, and tobacco to be a big influence on my thinking. Take any of these asway from me as an absolute commandment and you could expect me to become inventive about breaking the law and the lives of people making it so.

That the entire scripted interlude should focus, in the end, on Leo McGarry as the target of a prospective attack is not really a big surprise. We get to know that his drug abuse history included pills and rehabilitation. But I liked the comments from both Josh and the president about McGarry’s position. First:

LYMAN: You’re Leo McGarry. You’re not gonna be taken down by this… small fraction of a man. I won’t permit it.

And later:

BARTLET: Did you have a drink yesterday?

MCGARRY: No sir.

BARTLET: Are you gonna have one today?

MCGARRY: No sir.

BARTLET: That’s all you ever have to say to me.

MCGARRY: 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?

… the paternalistic rebuke …

Perhaps the most sharply observed dialogue passes almost as an aside between president Bartlet and the fictional retiring Supreme Court Justice Joseph Crouch. It is a painful kick in the teeth for Bartlet from an old man who might just have a point.

Crouch begins by disparaging the assumed choice of Harrison as his replacement, and the egregiousness of not seriously considering a Judge Mendoza, who is obviously Crouch’s choice. And then:

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. Just 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. Hmm! And instead I got you.

Ouch! But clever. It sets up the first season’s remaining preoccupation: approval ratings and re-election. Re-election was really reaching for a renewal of the show for a second season.

Crouch wasn’t finished with Bartlet:

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…

CROUCH: When the next seat opens up, you’ll be writing your memoirs.

BARTLET: In three years, I would hope to be running for reel…

CROUCH: You’re gonna get beat in three years.

BARTLET: That’s a little pessimistic, Joseph.

CROUCH: American voters like guts. And Republicans have got them. In three years one of them is gonna beat you.

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.

BARTLET: It’s ‘Dr. Bartlet,’ your honor. Now, let’s go start your retirement.

The contempt for an opportunity lost is palpable. It is the first time anyone but Ziegler has critiqued the president, and the only time to this point such criticism has been vitriolic condemnation of ineffectiveness as a Democrat. Is it ironic or tragic that the very same critique can now be made of Obama? As the Democrat president who did nothing to differentiate the party from the Republican Party as a fully owned vehicle of plutocratic interests?

In the past I thought of Crouch’s condemnation as one targeting the ineffectiveness of Carter, and maybe the corruption of Clinton, but it seems Sorkin might have been closer to a generational shift in the Democratic Party that I didn’t observe during its Bush wilderness years. A shift extinguishing idealism for the mercenary pursuit of power as an end in itself, creating another party without any sincere beliefs or principles at all.

That’s to say nothing at all about the inevitable comparison with the greatest in history that all people at the height of their careers endure.

The Crouch exchange is brilliant drama, sparsely written to open up boundless fertile territory for political navel gazing and critique. By the time another wizened Supreme Court oldster resigns (S05E07: Separation of Powers) the same rebuke couldn’t be made anymore, though the door is opened then for regrets and insults about achievements left undone.

As a precursor to the presidential backstory, the Crouch exchange is in microcosm what made Sorkin so different from other television writers: he didn’t need to spell things out as if to idiots. This left him room to move in later plot developments, and made the audience feel it was ‘in the company’ of smart and capable people when it tuned in to watch The West Wing.

… and the Supreme Court nomination

Ziegler considers Harrison's answers during the vetting.
Ziegler considers Harrison’s answers during the vetting.

Left for last here, the theme actually runs from beginning to end of the show, covers its most important messages, both political and didactic, and represents some of the best writing Sorkin has ever done, up to that point and since.

The initial excitement of getting a Supreme Court nominee seems juvenile now, but seems likely to signify the difficulty few people understand in that process. McGarry reminding everyone that Harrison’s interest in the nomination does not mean it’s a done deal is the adult response that settled my unease about Lyman’s hubris.

Sorkin has Sam Seaborn set the scene for the Bartlet White House selection criteria in nominating a supreme court judge:

SEABORN: It’s not about abortion. It’s about the next 20 years. Twenties and thirties, it was the role of government. Fifties and sixties, it was civil rights. The next two decades, it’s gonna be privacy. I’m talking about the Internet. I’m talking about cellphones. 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?

For 1999 that seems like a remarkably prescient statement coming from a scriptwriter. And it seems intuitively right that Sam, as an idealistic young lawyer with speechwriting nous, gets to speak the words.

It shouldn’t be surprising that the Bartlet White House has an activist conception of jurisprudence. And it was encouraging to see how Sorkin allowed the symbol of WASP propriety, Peyton Cabot Harrison III, to condemn the notion of literalism by his own words in rejecting Sam’s proposition, speaking like some big tent fundamentalist evangelist:

HARRISON: Judges are bound to interpret the Constitution within the strict parameters of the text itself. The Constitution doesn’t provide for a right of privacy. The right doesn’t exist.

SEABORN: The third amendment says soldiers can’t be quartered in private homes. The fifth provides protection against self-incrimination, and the fourth against unreasonable searches. You deny the right to privacy lived in those passages?

HARRISON: No. I do not deny it, but the fact that the framers enumerated those specific protections is all the more reason to believe that they had no intention of making privacy a de facto right.

SEABORN: They just fought a revolution but they had no question of their freedom. 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.

SEABORN: So do I, your honor.

The President then walks Harrison up a subtly lined garden path with questions about ugly clothes and cream for coffee. Harrison is exposed as an inflexible automaton who shouldn’t be allowed to make decisions for anyone. Still more honourable than a Kennedy, a Scalia, or a Thomas.

When Seaborn gets a tip-off that Harrison was the author of an ‘unsigned note’ indicating he would take a pretty authoritarian line on privacy, the nomination seems poised on the brink of disaster. As the show explains, an unsigned note is a part of an Ivy League college ritual for law valedictorians to publish an anonymous opinion on some point of law. Harrison’s unsigned note seems to have slipped through the cracks of the vetting process. And suddenly Justice Crouch’s choice of Judge Mendoza has to be re-examined. A man whose résumé reads humble origins but grounded wisdom.

Another moment to despise Mandy Hampton ensues:

LYMAN: You think Mendoza would be a bad justice?

HAMPTON: I think Mendoza would make a great justice. I think he makes a lousy nominee.


HAMPTON: He’s ruled in favor of same sex marriages…

LYMAN: He didn’t rule in favor of it, Mandy. He’s not recommending it. He’s ruled that the state has no right to interfere with it.

HAMPTON: He’s got the broadest possible interpretation for free speech.

LYMAN: And listening to you sometimes, I honestly wish you’d narrow it, so…

HAMPTON: You don’t have to tell me how to be a good person, Josh. I’m the one who has to sell this. And he is not exactly America’s idea of Supreme Court justice.

LYMAN: Mandy, I don’t…

HAMPTON: Let’s do a side-by-side comparison. [reads from piece of paper] Harrison went to Walnut Park Country Day, Phillips Exeter, and Princeton undergrad, and Harvard Law. Mendoza attended P.S. 138 in Brooklyn, City University of New York, and the New York Police Department. Harrison clerked for Warren Berger. Mendoza…

LYMAN: [off of the top of his head] 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 — 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’s 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.

Mendoza congratulated after becoming the nominee.
Mendoza congratulated after becoming the nominee.

Hampton seems representative of the mercenary new Democrat Party, devoid of all principle, and focused solely on instrumentality in seizing and maintaining power. Lyman is looking a little further, at the likely favour Mendoza’s humble résumé might find among real people.

When we finally meet Mendoza in the form of a surly-looking Edward James Olmos you can almost anticipate his nomination as a foregone conclusion; the actor already had a legendary status as some kind of Hispanic demi-god, stemming from his beginnings as the inscrutable and undefeatable Castillo in Miami Vice, but extending to his roles in Stand and Deliver, and American Me. It is a kind of semi-mythical status for an actor that accrues only rarely, as with Morgan Freeman, and that probably worked to make the re-imagined Battlestar Galactica such a success some years later.

The contrast couldn’t have been greater: the impeccably anal WASP character of Harrison portrayed so well by Ken Howard, and the reassuringly wise and humanist presence of Mendoza via Olmos.

I remember feeling the first time, just as I did this time, that the Mendoza nomination was a triumph for the Bartlet White House. I wondered the first time whether Olmos would get further cameos on the show, and I regret that with hindsight I know there is only one more to come.

Postscript: Gail’s fishbowl

Empire magazine cites Thomas Schlamme, a close Sorkin collaborator and West Wing director, revealing that West Wing props artist Blanche Sindelar began to place objects into the fishtank with Gail, the goldfish, to reflect some part of the script in the ensuing episodes. This practice persisted right to the end of the seventh season. Look for CJ Cregg’s fish tank and spot the easter egg. Or cheat and just look up the visual guide at Empire.


  • Written by Aaron Sorkin and Patrick Caddell from a story by Aaron Sorkin and Dee Dee Myers. Directed by Bill D’Elia. First aired 24 November 1999.

  • Regular headline cast members are listed for episode one.

  • Special Appearence by Edward James Olmos as Justice Roberto Mendoza.

  • Special Guest Stars: Mason Adams as Justice Joseph Crouch; Ken Howard as Judge Peyton Cabot Harrison III.

  • Guest Starring Timothy Busfield as Danny Concannon, Janel Moloney as Donna Moss, Holmes Osborne as Congressman Peter Lillienfield.

  • Co-Starring Kathryn Joosten as Dolores Landingham, NiCole Robinson as Margaret, Devika Parikh as Bonnie, Melissa Fitzgerald as Carol.

For discussion, see my Google Plus post and Randy Resnick’s Google Plus West Wing collection.

For a complete list of West Wing commentary see my West Wing index page.