The Nine (12 page)

The back-and-forth lasted several days. Clinton reached Cuomo from Air Force One, and Cuomo said he was leaning against accepting the nomination but would continue to think about it. Clinton left for a summit with Boris Yeltsin with the matter unresolved. As was customary in the Clinton White House, news of the negotiations with Cuomo leaked to the press, embarrassing the president. By April 7, after Clinton had returned to the United States, Stephanopoulos was badgering Andrew Cuomo, the governor’s son and chief adviser, on the phone.
We need an answer
.

According to Stephanopoulos, Andrew said he had spoken to his father for two and a half hours that day, and the governor ultimately said, “If you want me to, I’ll call Clinton and take it.” Word flashed around the White House that Cuomo was the choice, to be announced the following day. Klain stopped his search and started preparing for the ceremony. But an hour later, Cuomo faxed Clinton a letter that said his duty to New Yorkers outweighed his desire to serve on the Supreme Court. The Cuomo nomination was dead—or so it appeared.

Meanwhile, even with Cuomo out of the running, Clinton was still infatuated with the idea of naming a politician. Important decisions are a form of autobiography, and Clinton believed his skills with people and his “big heart” were more important than mere legal expertise. He was determined to appoint someone in his own image. Clinton also had a politician’s conviction that legislation, rather than litigation, was the best way to solve society’s problems, so he didn’t want to waste a great deal of political capital pushing a controversial choice through the Senate. Clinton had built his campaign on economic issues, and he didn’t want to divert his focus in Congress. His economic program, with health care next on the agenda, was simply more important to him than taking a risk on a novel choice for the Supreme Court.

Clinton turned next to George Mitchell, the Senate majority leader and a former federal district judge in Maine. He had the same kind of skills as Cuomo, but without the governor’s need for psychodrama. True to form, Mitchell didn’t agonize when Clinton offered him the job. He declined on the spot, preferring his job in the Senate and his mission of passing Clinton’s legislative program. Next came Richard Riley, the former governor of South Carolina who was Clinton’s secretary of education. He, too, declined, with winning self-awareness. “I was a mediocre country lawyer,” Riley told the president. “This isn’t my thing.”

What about Bruce Babbitt? Clinton asked. Like Riley, Babbitt had been a Democratic governor in a largely Republican state, and he now served in Clinton’s cabinet, as secretary of the interior. And as the former attorney general of Arizona, Babbitt would have none of Riley’s qualms about his own fitness for the job. Let’s do Babbitt, subject to a background check, Clinton told his team.

So Vince Foster and Klain spent an entire night in Babbitt’s office in the Interior Department, a vast sprawling space that is sometimes described as the best office in Washington. They pored over tax returns, especially payments to household help. (This was just weeks after Clinton’s nomination of Zoe Baird for attorney general had foundered because she had hired illegal immigrants as a family nanny and a chauffeur. Worries about a “Zoe Baird problem” became an enduring preoccupation for public figures of all kinds.) The all-night vetting session turned up no problems. The White House lawyers told Babbitt to prepare for an announcement in the Rose Garden the following day.

In the morning, though, Clinton had misgivings. First, the
Washington Times
, a conservative paper owned by the Reverend Sun Myung Moon, reported that Babbitt had gambling debts in Las Vegas casinos that were paid off by the mob. More important, Clinton had spoken to Orrin Hatch, the ranking Republican on the Judiciary Committee, and Hatch had said Babbitt would have a hard time getting confirmed. Babbitt’s strong proenvironmental views had alienated a group of Republican senators from the West, and they might take revenge—either on Babbitt’s nomination or on Clinton’s choice for his replacement at Interior. Several western Democrats were pushing New Mexico congressman Bill Richardson for the Interior post, but Vice President Gore didn’t think Richardson was “green” enough for the job.

So Clinton dropped Babbitt, with perhaps greater alacrity than the situation warranted. None of the problems with a Babbitt nomination were likely insurmountable. (The
Washington Times
story turned out to be completely bogus.) Both Babbitt and a successor at Interior would likely have been confirmed eventually. In truth, Clinton always had some ambivalence about Babbitt, because the two men were almost too similar, down to their accomplished and ambitious wives. (Clinton had chosen Hattie Babbitt as the U.S. representative to the Organization of American States.) There was a thread of competition in the relationship between the Clintons and the Babbitts, and Clinton might have wanted to remind Babbitt which one of them was the president.

More than a month had passed since White’s letter, and Clinton still had no nominee, not even a front-runner. Perhaps, Clinton conceded, after four politicians it was time to look at some judges. There was no question about Clinton’s favorite judge. It was Richard Arnold, who sat on the federal court of appeals in Arkansas. Arnold was a leading ornament of the federal judiciary—a scholarly moderate respected by colleagues across the political spectrum—but the Arkansas connection was troubling. Clinton had already named a number of allies from his home state to top jobs in his administration, and an Arnold selection might have looked like cronyism, especially since Arnold’s wife had served as Governor Clinton’s director of cultural affairs. In truth, the Arnolds and the Clintons traveled in different social circles in Little Rock and were not close friends, but the taint would have been hard to avoid. So Clinton passed on Arnold.

Al Gore had an idea—Gilbert S. Merritt Jr., another Carter appointee to the federal court of appeals, if less well known than Arnold, and a friend of the Gore family from Tennessee. Merritt had appeal on another score. At that moment, Clinton was struggling with the nomination of Lani Guinier as assistant attorney general for civil rights. During her confirmation battle, it emerged that she had written some provocative articles about voting rights that led opponents to deride her as a “quota queen.” The appointment of a white male Southerner like Merritt would reestablish Clinton’s centrist credentials. Clinton sent his vetters to work, and they came back with a possible problem relating to Merritt’s tenure as U.S. attorney, back in the 1960s. It might not have been disabling by itself, but the issue allowed the general lack of enthusiasm surrounding Merritt to turn it into a disqualification.

By this point, Clinton had taken to reading the ever-growing amount of background material on possible nominees himself. Some of the write-ups came from his administration, some from volunteer lawyers who were helping from the outside, and some were simply sent over the transom—from members of Congress or the vast network known as the Friends of Bill (and Hillary). In the meantime, the Guinier nomination blew up, with Clinton withdrawing her nomination after deciding her writings were indefensible. Clinton and his staff’s handling of the Guinier situation was so abysmal that it changed the dynamic surrounding the Supreme Court choice. Now Clinton thought naming a woman was a
good
idea—to mend fences after the Guinier fiasco.

Clinton plucked a name from one of the lists—Janie Shores. What about her? Clinton asked. So Klain faxed her the vetting forms that all possible appointees had to complete.

Shores was the first woman to serve on the Alabama Supreme Court, but she was utterly unknown in Washington legal circles, and no one—not Clinton or anyone on his staff—had any idea where she stood on constitutional issues or much of anything else.

Bernie Nussbaum, the White House counsel, who was growing increasingly embarrassed as the names came and went, decided to make a stand: “You are not nominating Janie Shores to the Supreme Court. No one knows who she is. This is insane.” Clinton relented. (Inside the White House, the blameless Shores became a symbol of the chaotic process; years later, the mere mention of her name would reduce some staffers to helpless laughter.)

From the day White resigned, Ted Kennedy, the Senate veteran from Massachusetts, had been pushing Stephen Breyer. A former Kennedy staffer and professor at Harvard Law School, Breyer was chief judge of the federal court of appeals based in Boston. Clinton had a real reverence for Kennedy (without the edge of competition that colored his relationship with others, like Cuomo and Babbitt). The president also respected Kennedy’s political instincts, which the venerable old pol now deployed. Instead of calling Clinton again in support of Breyer, Kennedy prevailed upon Orrin Hatch to tell Clinton that Breyer would be a fine choice. Hatch had liked Breyer since he took a leave from Harvard to work for Kennedy on the Judiciary Committee in the late seventies. Clinton was impressed by Hatch’s call. Let’s dig in on Breyer, he told his staff.

So Foster, Klain, and Seidman flew up to Massachusetts. Unfortunately, just a few days earlier, Breyer had taken a bad spill from his bicycle near his home in Cambridge, and he was still a patient at Mount Auburn Hospital. (In keeping with the quasi-public nature of the search, local reporters learned that the vetting team was in the hospital, and the White House aides had to slip out a side door to avoid them.) But the interview had gone well. Breyer was told to come to Washington for a talk with Clinton and then, probably, a formal announcement.

Breyer had broken ribs and punctured a lung in his accident. He wasn’t allowed to fly, so the judge took a bone-jarring train ride to Washington, where Foster met him at the station and took him to the Oval Office. The meeting between Breyer and Clinton went badly. Normally a friendly, almost garrulous man, Breyer was short of breath from his injury and still in pain. Afterward, Clinton told his staff Breyer seemed “heartless”—when a big heart seemed to be the president’s main criterion. Breyer’s background in administrative law suggested an unduly conservative bent. “I don’t see enough humanity,” Clinton said. “I want a judge with a soul.” (Breyer, who was told none of this, had been instructed to wait by the phone.)

The annual picnic for members of Congress on the South Lawn of the White House happened to be scheduled the night of Breyer’s interview with Clinton. The president called a meeting for 11:00 p.m. to hash out a decision. The meeting featured all of the flaws for which Clinton’s early decision-making process was known. There were too many people (twelve staffers) talking for too long (ninety minutes) at a time of day more suited for a college bull session. Rather than make a decision, Clinton concluded by asking everyone in the room for their votes on Breyer, which revealed a majority, but not unanimity, in his favor. “Let’s get him over here tomorrow,” Clinton said at the end. “I’m going to do it. We’ll announce it tomorrow.”

But first thing the following morning, Foster and Klain were back in the Oval Office. Foster had been going over the Breyer family records for household help and the like, and the papers were a mess. Maybe it was fixable, but maybe it wasn’t. Clinton sagged into his chair. Searching as ever for more options, he said no one had asked Janet Reno for her ideas. (It might seem obvious to include the attorney general in deliberations about a Supreme Court nomination, but Clinton barely knew Reno. She was newly installed in office after a different nomination debacle, which saw Baird and then Kimba Wood rise and fall as candidates.)

Clinton told Klain to go to the desk of his personal assistant Nancy Hernreich, who sat with Betty Currie outside the Oval Office, and call Reno for her suggestions.

Reno came right to the phone, and the first thing she said was, “Why aren’t you people looking at Ruth Bader Ginsburg?”

For one of the most accomplished lawyers and judges of her generation, Ruth Ginsburg had an astonishing ability to disappear in a crowd. She was tiny, for one thing, barely five feet tall and a hundred pounds, with the bearing of a little bird. But Ginsburg’s presence was small, too. She had a shy, almost timid smile, and her eyes were hidden behind enormous glasses. Ginsburg’s conversations were famous for long silences that sometimes left admirers (or clerkship applicants) babbling incoherently to fill the vacuum. She was sixty years old in 1993, older than most recent Supreme Court nominees, and the grooves in her personality were set, for better or worse.

At the time of the Clinton presidency, Ginsburg led a cosseted life in her apartment at the Watergate, but her voice still bore traces of her hardscrabble upbringing in Brooklyn. Ruth Bader’s sister died in childhood, and she lost her mother to cancer when she was seventeen, the day before she graduated from high school. She went to Cornell, where she met her husband, Martin, and they both went on to Harvard Law School, where she was one of nine women in a class of more than five hundred students. There, shortly after the birth of their daughter, Martin was struck by testicular cancer. Through his long and difficult treatment, Ruth cared simultaneously for him and their child, attended class and took notes for both of them, typed his papers, and made law review herself. Perhaps as a consequence, in later years Ginsburg had less sympathy than some judges for complaints of overwork from her clerks.

Martin and Ruth Ginsburg settled in New York, where Martin practiced tax law and Ruth began a career teaching law, first at Rutgers and then, in 1972, as the first tenured woman at Columbia. She joined the American Civil Liberties Union and led its early efforts in what was then known as the women’s liberation movement. Ginsburg was hardly a radical, and she became famous for canny strategy by litigation jujitsu. Her goal, of course, was to end the discrimination that was then pervasive against women, but she needed a way to dramatize the issue in front of judges who were invariably male.