"A Centrist Appellate Judge": How Bill Clinton settled on #RBG, @AuthorPMBarrett's July 1993 @WSJ report: The Final Choice: Clinton Picks Ginsburg For the Supreme Court After Tortuous Search --- Again His Wavering Raises Questions About Ability To Make Hard Decisions --- A Centrist Appellate Judge
The Wall Street Journal
Paul M . Barrett and Jeffrey H. Birnbaum
Staff Reporters of The Wall Street Journal
15 June 1993, 2221 words, English, PAGE A1
WASHINGTON -- For would-be Supreme Court justices as for attorney general candidates, the lesson seems to be: When Bill Clinton is doing the picking, it's better to be last than first.
After weeks of vacillation and highly public contemplation of other candidates, Mr. Clinton yesterday nominated Ruth Bader Ginsburg to fill the vacancy created by the retirement of Justice Byron White. In doing so, he tapped a politically moderate, well-respected appellate judge who played a historic role in opening opportunities for American women -- but he did so at the expense of his image as a strong and decisive leader.
Mr. Clinton offered words of high praise for each of the two men he had been on the verge of nominating at various times over the past two weeks, Interior Secretary Bruce Babbitt and U.S. Court of Appeals Judge Stephen Breyer of Boston. Either one would be highly qualified to serve on the court, he said, and they "may well find themselves in that position someday in the future."
But the way the two men were so visibly raised up -- and then set down at the first sign of potential political trouble -- reinforces concerns about the president's stick-to-itiveness that have been fueled by such episodes as his abandonment of his controversial tax on the heat content of fuels and his withdrawal of Lani Guinier's nomination to head the Justice Department's civil-rights office.
"It contributes to a pattern of indecisiveness," says Irwin "Tubby" Harrison, a Democratic pollster, though he adds that, for now at least, the problem for Mr. Clinton is bigger inside the Washington Beltway than in the country at large.
The president's eventual choice, Judge Ginsburg, is a far cry from the sort of justice he has said he wanted: a nationally known political figure who could build a new, more progressive consensus on the fragmented, right-leaning high court.
Last year, during preparation for a debate against George Bush and Ross Perot, Clinton political adviser Paul Begala threw a practice question at the candidate: Wouldn't Mr. Clinton's publicly stated desire to appoint someone such as New York Gov. Mario Cuomo to the Supreme Court be just a crass political maneuver to cloister a potential rival?
Not so, Mr. Clinton responded. He spoke passionately about how the Supreme Court that decided the landmark 1954 school desegregation case not only was led by former California governor and vice presidential nominee Earl Warren, but also included no fewer than three former U.S. senators, as well as a bevy of former New Deal political figures.
But Mr. Clinton's search for a new-model Earl Warren went awry when Gov. Cuomo withdrew his name in April, triggering the painful search process that culminated yesterday.
If there is a silver lining for the president, it may be that, as with his eventual selection of Janet Reno as attorney general after dropping choices one and two, he has a political winner in Judge Ginsburg. The 60-year-old jurist is at once a heroine to many feminist groups and a respected centrist on an appeals court sharply split between her more-liberal fellow Carter appointees and conservatives named by Ronald Reagan and George Bush.
But while Judge Ginsburg has the respect of both camps on the Washington appellate court, nothing suggests she has the ability to forge a new Clinton majority on the high court. She isn't known for asserting much leadership; rather than coax colleagues to join her, she tends to deliberate independently and then stick with her views, whether or not they lead to consensus.
She also has a sometimes pedantic concern about details and procedure; even people who admire her commonly describe her as schoolmarmish. And her opinions reveal no broad constitutional philosophy.
Before she came to the appeals court, Judge Ginsburg was a leading litigator for women's rights in the 1970s. Ironically, though, President Clinton's first reaction when her name was first suggested to him was one of concern that women's groups would object.
It was May 12, and Mr. Clinton was aboard Air Force One on his way to New York for a speech and political fund-raiser. Also aboard was New York Democratic Sen. Daniel Patrick Moynihan, a strong supporter of Judge Ginsburg. The senator told Mr. Clinton of a letter endorsing her from Michael Sovern, the outgoing president of Columbia University and former dean of the law school where she once taught. "Mike Sovern just doesn't write letters like this," the senator said.
But the president told associates that there might be trouble from women's groups if he selected Judge Ginsburg. The reason: While she favors abortion rights, she has criticized the sweeping nature of the court's reasoning in the 1973 landmark Roe vs. Wade decision that first recognized a special constitutional right to abortion. On further investigation, however, the White House found that some abortion-rights advocates agreed with her argument, and Judge Ginsburg, whose name had been on the original list of 50 candidates compiled by associate White House counsel Ronald Klain back when Justice White announced his retirement, moved up a notch.
Mr. Klain's original list had touched Democratic Party political bases by mentioning an ethnically diverse group of candidates, including federal Judges Amalya Kearse, a black woman; Jose Cabranes, a Hispanic; and Judge Breyer, who like Judge Ginsburg is Jewish. White House officials acknowledge that one factor all along was the president's interest in appointing a Jew; the so-called Jewish seat on the court hasn't been filled since Abe Fortas resigned in 1969.
But within the White House, there was a strong assumption that Mr. Clinton, given his comments during the campaign, would ask Gov. Cuomo. The idea of a politician-as-justice was further pushed by Clinton legal adviser Walter Dellinger, a Duke University law professor who for several years has been peddling the idea that the Republican-dominated court lacks figures of political stature.
On March 29, 10 days after Justice White made his announcement, the president phoned Gov. Cuomo to tell him he was under "very serious consideration" and to ask whether the White House staff could launch an in-depth background check.
But three days later, when the president called again from Air Force One on his way to an environmental summit in Oregon, Gov. Cuomo said he had thought it over and didn't want to be considered. He said he wanted to stay in politics. His explanation baffled the president and White House aides, who never figured out if there was more to Gov. Cuomo's decision. Some White House aides later tried, falsely, to spread the word that Mr. Cuomo wouldn't really have been chosen anyway, but his withdrawal clearly left the White House scrambling.
It didn't have a runner-up candidate. But rather than work methodically to narrow his list, Mr. Clinton reissued his grandiose standard for a nominee: "Will people say, `Wow, that's an inspired choice for the Supreme Court?'" Within the White House, one of the words he liked to use most was "bigness."
The process was free-form, with the president personally involved at every step. Discussions occurred unpredictably, sometimes when he happened to run into White House counsel Bernard Nussbaum or Mr. Klain in the halls. When he periodically had a late-night yen to talk over the possibilities, he would pick up the phone and call his aides. But the initial exhilaration about the opportunity to name a justice gradually gave way to frustration as staff members realized that the president's sights were set above the field of candidates.
The administration's larger political problems also began to affect the process. The Guinier nomination fiasco and attacks from conservative Democrats in Congress prompted the White House to launch a move to the political middle -- and a search for someone who could be easily confirmed.
Previous presidents generally tried to keep their screening process low key. For instance, before President Bush nominated David Souter and Clarence Thomas to the court, contenders were discreetly interviewed and decisions were quickly made. But the Clinton process dragged on and on -- and became increasingly public to boot.
Mr. Clinton asked his Education secretary, Richard Riley, a former governor of South Carolina, if he wanted the job. But Mr. Riley demurred. "He didn't like the monastic life of a judge," says his father, Edward P. Riley.
Mr. Clinton next turned to Mr. Babbitt, who emphatically did want the job. He was intensively interviewed in his office a week ago Sunday evening, and White House aides began to spread the word that he was the leading candidate.
But by midweek, the president was being buffeted by political pressures. Environmentalists and Western-state law makers complained that they wanted Mr. Babbitt to stay at Interior, where he is having some success in balancing business and ecological interests. At the same time, some conservatives also vowed to attack the nominee in an effort to make the confirmation process messier than the White House wanted.
While Mr. Babbitt remained a contender, the spotlight started to shift to Judge Breyer, a widely respected judicial centrist. At the same time, Judge Ginsburg was slated as a backup to Judge Breyer should his name also create problems.
Judge Breyer seemed to offer the prospect of a trouble-free confirmation. A former staffer for Sen. Edward Kennedy and a conservative on some business-regulation issues, he is popular with Senate Republicans as well as Democrats. Coming off a hospital bed to have lunch with the president last Friday, Judge Breyer impressed Mr. Clinton as intelligent and capable, but the president decided to meet Judge Ginsburg as well.
The White House had known for five weeks that Judge Breyer had failed to pay Social Security taxes for a part-time housekeeper. When word of that leaked out Saturday, a few senators began to express qualms. The White House insisted that the problem wasn't disqualifying and that Mr. Breyer remained a contender. But even then, attention was shifting to Judge Ginsburg.
Late Saturday morning, the White House tracked her down and told her she would meet with the president. White House aides arrived at the Ginsburgs' Watergate duplex apartment Sunday morning. She worked downstairs in the living room, going over her career with the staffers, while her husband, Martin, a prominent tax lawyer, worked with administration accountants upstairs going over financial records.
The records were impeccably ordered, including all Social Security payments. This was important. "The impression I got was that the White House wanted to see their records instantly. If they could not produce their records instantly, the possibility of being named would be greatly diminished," says Stephen Hess, a Brookings Institution political analyst and a relative by marriage of Judge Ginsburg.
At about noon, Judge Ginsburg went to the White House for a private lunch with Mr. Clinton; afterward, she returned to her apartment to finish the vetting with Mr. Nussbaum and crew. Mr. Clinton went to the golf course with a lobbyist, James Free, Washington lawyer Vernon Jordan and Missouri Democratic Rep. Alan Wheat.
Mr. Clinton, though an hour late, revealed little to his golf mates about the reason for the delay. "We talked about golf," Rep. Wheat says. "It was a short break from what appeared to be a busy day." After nine holes, Mr. Clinton said he had to get back to the White House. Mr. Jordan, a confidant from the campaign and transition, accompanied him and remained at the White House.
Judge Ginsburg, in the meantime, finished up with the vetters and was told she might know by about 5 p.m. By that time, the White House insists, the president had all but decided it would be Judge Ginsburg, but went to a press dinner and didn't begin to make calls to congressional leaders to tell them of his decision until much later. At 11 p.m., Mr. Nussbaum called and told the Ginsburgs not to go to sleep; finally, around 11:30, the president called with the definitive word.
Shortly after midnight, Judge Ginsburg's advocate, Sen. Moynihan, called Mr. Hess and woke him up with the news. "It's done," the senator said. "It's epic."
The long process came to an end with Mr. Clinton's formal Rose Garden announcement of Judge Ginsburg's nomination -- but not without a final, sour note. After the president and Judge Ginsburg each made remarks, a reporter asked about "a certain zig-zag quality in the decision-making process," and the president exploded in anger.
"I have long since given up the thought that I could disabuse some of you turning any substantive decision into anything but political process," Mr. Clinton said. "How you could ask a question like that after the statement she just made is beyond me."
(See related letter: "Letters to the Editor: Clinton Didn't `Explode'" -- WSJ July 23, 1993)