Clinton's Search for Ginsburg: Deliberate, Difficult, but Fruitful
A look at the process of picking a Supreme Court nominee shows a highly public job open to criticism. The president took a personal interest in the search to the final hours.
PRESIDENT Clinton decided Sunday afternoon, June 13, that federal appeals Judge Ruth Bader Ginsburg was his choice for the Supreme Court. At about 11:30 p.m., he went to the kitchen of the White House living quarters and tried to telephone the judge with the good news. He got nothing but static on the line. "Hello? Hello?" the perplexed chief executive said. When he got through, he couldn't hear anything. So the president dialed again. This time, he told Judge Ginsburg, "If I'm going to propose, we might
as well have a good line."
The president's difficulty establishing a telephone connection - related by senior White House officials on condition of anonymity - was only the last, nagging obstacle he faced in a long, torturous search for a Supreme Court nominee. The 88-day ordeal, which culminated in Ginsburg's formal nomination June 14 at a Rose Garden ceremony, has come under fire even from many Democrats.
The process, critics say, was too drawn out, too disorganized, and too public, with failed nominees subjected to unnecessary ridicule. "The president was cruel to [Interior Secretary Bruce] Babbitt to leave him hanging," says one Democratic lawyer. "Many people think it was done in a way that appeared to be callous to those under consideration."
White House officials say it took as long as it did because the president, who is a former constitutional law professor, took a personal interest in every facet of the process. But, these officials argue, no great harm was done. "We knew that [Justice Byron] White's resignation [on March 18] gave us a lot of time. We knew we had until late May or early June. And we were going to take all that time," says one top White House official. Preliminary list of 50
The search for a Supreme Court justice began one day after Mr. White announced he would step down at the end of the current term. Administration officials were not expecting a court vacancy so soon, but the White House counsel's office had drawn up a preliminary list of 50 possible appointees. The list, which included Ginsburg's name, was presented to Clinton at an Oval Office meeting on March 19.
Before long, the president's aides cut the list down to about 40 people. For each of the contenders, aides prepared a mini-biography of 8-to-10 single-spaced pages. By the end of April, approximately 25 candidates had been profiled. Each of the mini-bios was passed along to Clinton, who discussed them with aides at numerous and lengthy meetings.
"Initially the president was interested in looking at people who hadn't been judges," says one official. But the two top nonjudicial candidates - Gov. Mario Cuomo (D) of New York and Education Secretary Richard Riley - announced they did not want to be considered. "So we narrowed it down to some political figures and some judges," the White House official says.
As various trial balloons were floated to the press and the Senate, the list shrank to two or three finalists. The president appeared to be leaning toward Secretary Babbitt, since he preferred a nonjudge and a nominee he knew well. On Sunday, June 6, top officials from the White House counsel's office "vetted" the interior secretary - an intensive grilling that is one of the final steps before nomination.
But a funny thing happened on Babbitt's road to the court: He discovered he was both too popular and too controversial to be nominated.
Environmentalists sent up a hue and cry about how they could not afford to lose Babbitt at the Interior Department. Congressmen told the president at a picnic last week that he would have a hard time finding an acceptable replacement. And Utah Sen. Orrin Hatch, a top Republican on the Judiciary Committee, says he told Clinton that any politician would be a risky appointment.
All of those factors weighed heavily with the president, officials say. So Babbitt fell back in the court sweepstakes as appeals court judge Stephen Breyer of Boston gained favor. On Wednesday, June 9, top White House officials flew to Boston to vet the judge. They were impressed with the centrist jurist who had the support of Senate Democrats and Republicans.
Two days later, Mr. Breyer traveled with his family to Washington and spent an hour and a half with the president over lunch in the White House. Officials report the conversation went well, but apparently the president was not overly impressed with Breyer. There was another problem with the judge that emerged into public view the next day, but that White House officials and senators had known about for weeks: Breyer had not paid Social Security taxes for a domestic worker. No capital to spend on Breyer
Although both senators and White House aides stress that the lapse was not "disqualifying," it clearly did not help at a time when the president has little political capital to expend.
"I think Breyer would have been confirmed, but the administration thought, `Let's not go through this criticism when we have another candidate who's a woman and a Jewish-American,' " says Sen. Dennis DeConcini (D) of Arizona, a member of the Judiciary Committee.
The other candidate was Ruth Bader Ginsburg. The feminist-crusader-turned-centrist-judge emerged as a dark horse contender as Babbitt and Breyer faded. On Tuesday and Wednesday, June 15-16, White House aides scoured all of the judge's writings. On Friday night, Clinton asked for an interview. But Ginsburg was attending a wedding in Vermont, and she couldn't come to the White House until 11:00 a.m. Sunday.
Aides report that this meeting was the "turning point." Clinton was struck by Ginsburg's "self-effacement," "strength of character," and above all, by the story of her struggle as a woman entering a male-dominated legal profession. "The president found the entire meeting quite moving," a senior official says.
Not long afterward, Clinton reached the decision that had Ginsburg making "courtesy calls" June 16 on senators who must approve her confirmation to the nation's highest court.