Directed by Jessica Yu
Written by Debora Cahn & Josh Singer
Owen Brady, an Associate Justice of the Supreme Court, has died suddenly of a heart attack. This prompts a great deal of chaos as the White House senior staff attempt to pick a replacement. The problems go well beyond the liberal and conservative protesters crowding the streets outside the White House, however; Brady was a lifelong conservative Republican, and the Republican-dominated Congress has made it clear that a nominee who they deem to be too liberal will not make it through the confirmation process. The senior staff are thus forced to locate a moderate candidate who will be acceptable to both Congress and the White House.
Toby and Josh are assigned to interview Judge Evelyn Baker Lang, a circuit court judge who has been brought to the White House to act as a decoy; although far too liberal to make it through the confirmation hearings, the White House hope that making it appear like Lang is being considered will spook conservatives in Congress while mollifying liberals, thus easing the confirmation on both sides for the eventual moderate candidate. Lang surprises Toby and Josh by revealing that she has deduced the plan, and her intelligence and good humour about the subject charms and impresses Josh.
President Bartlet interviews E. Bradley Shelton, a moderate judge who is so far the front runner. When asked about Affirmative Action, Shelton insists that he considers the facts of the case at hand more important than any ideological beliefs he may possess on the subject. Toby and Josh, meanwhile, continue interviewing Lang, who demonstrates great insight about the questions she is likely to receive at a confirmation hearing from Republican judges but stuns the two by casually revealing she had an abortion as a law student.
To Josh's disappointment, Toby and C.J argue that she should be dismissed from even hypothetical consideration, arguing that the resulting controversy if this was revealed would outweigh her value as a decoy. When he learns this, however, Bartlet angrily refuses, arguing that her abortion was legal and that a lot of women voted for him because he promised to safeguard the right to choose. He demands that Lang be placed on the short list of nominees regardless of the potential outrage; although there is seemingly no chance that she will ever be nominated, he believes that giving her the honour of being placed on the list is the least he can do given her clearly exceptional abilities and graciousness about being used as a decoy.
Donna, meanwhile, has received a box of home-made cookies from her mother, and when accepting one Josh notes a photo of two cats on the box. In the resulting conversation, Donna reveals that her parents only intended to buy one cat, but couldn't decide between the two; as a compromise, they ended up getting both instead. This gives Josh a sudden moment of inspiration, and he runs to Toby with an idea. Roy Ashland, the liberal Chief Justice of the Supreme Court, is showing signs of suffering from dementia but, when pressed, has refused to retire on the grounds that Bartlet would not be able to get a similarly liberal judge to take his place through the Republican Congress. Josh thus suggests that they nominate Evelyn Baker Lang to fill Ashland's seat as Chief Justice, and then allow the Republicans in Congress to suggest a conservative to fill Brady's seat — this way, both ideological positions are represented and both sides will be satisfied rather than having to select a moderate to fill Brady's seat.
Toby reacts angrily to the idea of handing the Republicans a seat on the court, prompting a passioned debate between Josh and Toby over the virtues of moderate compromise versus the virtues of passionate partisan disagreement. Bartlet is also skeptical, but allows Josh to approach both Ashland and the Republican members of the Judiciary Committee with the idea to get their perspectives. Both sides are willing to agree to the idea, but both Toby and Bartlet are further infuriated when they hear who the Republicans propose to nominate — Christopher Mulready, a conservative who has written controversial articles expressing passionate right-wing views about gay marriage, enumerated rights, corporate personhood and environmental law, among other topics. Although initially resistant, Toby is convinced to at least consider the idea. In secret, both Lang and Mulready are brought in to be interviewed by the President while Josh and C.J attempt to convince Senator Roland Pierce, the ranking Democrat on the Judiciary Committee, to agree to the deal — helped with a bottle of twenty-one year old scotch.
As Bartlet interviews — and is charmed by — Evelyn Baker Lang, Toby watches over Mulready. The two quickly become embroiled in an argument over the Defence of Marriage Act, with Toby opposed and Mulready in favour. The increasingly heated debate is interrupted by Lang who, much to Toby's surprise, reveals that she and Mulready are friendly despite their ideological differences and that Mulready — despite his personal opposition to gay marriage — would not support Congress legislating the issue anyway. Josh and Toby watch incredulously as Lang and Mulready argue passionately but respectfully over their differences, and become more convinced that their idea has merit.
Mulready is brought into the Oval Office to meet the President where the two discuss the nomination process. Mulready confirms that he greatly respects Lang despite their differences, and — unaware of the reason why he has been brought to meet Bartlet — argues that the Supreme Court needs the clash of ideological opposites in order to function at it's best; a passionate rebuttal to a majority decision is as important as moderate compromise. Although skeptical, Bartlet is convinced by Mulready's argument.
With the necessary parties agreeing to the plan, the next day Roy Ashland announces his retirement, and as Charlie and Mulready debate Affirmative Action, Toby asks Lang — who will be the first female Chief Justice of the Supreme Court — to sign a copy of the Fourteenth Amendment for his baby daughter. The episode closes with Bartlet announcing that Lang and Mulready are his nominees for the Supreme Court before the gathered members of the press.
Provides examples of:
- Brutal Honesty: Justice Lang's use of this is what makes Toby and Josh realise that not only is she a good judge, she's whip-smart. It's not exactly brutal, in that she's smiling and warm while she says it, but it lets them know that she knows exactly why they called her in:Lang: A conservative anchor 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-kabobbed 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.
- Mulready saying something very similar to Bartlet later in the episode is a clue to how smart he in turn is.
- Cool Old Guy: Senator Pierce turns out to be one of these, making a much better impression on the audience than his nephew ever did. He drinks CJ and Josh under the table and is key to the plan to put Lang and Mulready on the Supreme Court.
- "Eureka!" Moment: Donna's story about her parents compromising by getting two cats instead of fighting over one inspires Josh to propose asking Ashland to step down in favor of Lang so they can offer the Republicans their choice for Brady's seat.Donna: Oh my god, you're putting my mother's cats on the Supreme Court.
- Foreshadowing: A minor subplot in the episode involves Toby arguing with his ex-wife Andy over a congressional delegation to Gaza to meet with Israeli and Palestinian diplomats. This will take on increasing significance over the next few episodes.
- Friendly Enemy: It turns out that, despite being ideological opposites, Evelyn Lang and Christopher Mulready are good friends (or at least get on very well) and appear to very much enjoy debating with each other.
- The Gadfly: Mulready apparently has tendencies towards this; he argues passionately with Toby in support of the Defence of Marriage Act, only for Lang to reveal that he wouldn't support Congress legislating marriage to begin with, and argues with Charlie over affirmative action only to turn around and tell Charlie the arguments he should be making.
- Golden Mean Fallacy: Discussed; Toby and Josh argue the merits and drawbacks of moderation vs. ideological opposition.
- MSNBC Conservative: Justice Mulready, whose judgements seem to be almost punitively right-wing, yet who is also courteous, highly intelligent, willing and able to argue both sides of any case, extremely friendly with the very liberal Justice Lang and more than happy to have her as Chief Justice.note
- Happy Ending: Although the ending looks like Status Quo Is God, in that the Supreme Court still ends up with the same ideological balance as before, it's actually this, in that Justice Ashland will retire in the knowledge that his replacement is as brilliant and liberal as he was, and her counterpart is a rock-solid and equally brilliant conservative who respects her and who won't be pointlessly adversarial. In short, this is a rare Season 5 victory for the Bartlet administration.
- Put on a Bus: There is no mention of Mendoza, the Justice that was put on the Court back in Season One. It's implied from the emotions running among the West Wing staff that Mendoza turned out to be a more moderate Justice than they hoped.
- Scream Discretion Shot: A non-horror/violence variant, combined with Suddenly Shouting, when Bartlet learns who the Conservatives want on the bench, as the viewers are instead seeing Debbie outside his office playing music on her stereo.Bartlet: Mulready?!
- Take a Third Option: Rather than take a bland but competent moderate judge to fill a Supreme Court vacancy, or try to force a brilliant but liberal judge into a hopeless fight against a conservative Republican Senate, the White House gets a sitting but ailing liberal judge — the Chief Justice no less — to sensibly retire, and then nominate two brilliant judges — one liberal as Chief Justice, one conservative as Associate — to placate all sides.
