The Nine Page 8

  5

  BIG HEART

  Early in the third week in March of 1993, Byron White called to invite Ron Klain to breakfast at the Court on Friday, the nineteenth. On the surface, there was nothing especially unusual about White’s summons. Klain had clerked for White for two years in the late 1980s and gone on to start a career in law and politics—as chief counsel for the Democrats on the Senate Judiciary Committee and then as an associate counsel for the new president, Bill Clinton. As it happened, Klain’s portfolio included Clinton’s judicial appointments.

  White liked talking to Klain because the justice still fancied himself a political insider—and a Democrat, even if few others did. Long ago, White had been a dashing figure of John F. Kennedy’s New Frontier. When he was appointed to the Court in 1962, the Senate was giving little scrutiny to Supreme Court nominees, and his hearing before the Judiciary Committee lasted fifteen minutes and consisted of eight questions. He had never been a judge, had spent most of his career in private law practice in Colorado, and was far better known for his exploits as a college and professional football star than for his brief tenure as Kennedy’s deputy attorney general. By far the best-known fact about White was his nickname, Whizzer, which he hated. At the time of his appointment, White’s views on constitutional issues were a mystery.

  In three decades on the Court, White established himself as a thoroughgoing conservative. He dissented from most of the last round of famous decisions in the Warren Court—like Miranda v. Arizona—and he became a leading voice on the right through the Burger and Rehnquist years. He had dissented from Roe in 1973, wrote a scathingly dismissive opinion about gay rights in Bowers v. Hardwick in 1986, and generally voted for the government over the individual. (On race and the scope of federal power—the issues that most engaged him in the Kennedy Justice Department—he inclined toward a more liberal view.) To Klain and others, White would insist that it was the Democratic Party that had changed, not him, and that he remained true to the spirit of JFK, but he had few takers for that view.

  As the week progressed, Klain started to have suspicions about the real purpose of the breakfast. He checked with some other former law clerks who sometimes joined him for breakfast with White, and he learned that none of them had been invited. Still, Klain told no one from the White House except his assistant about his appointment.

  No breakfast was served. At 9:00 a.m. on March 19, White’s secretary ushered Klain into chambers, and the justice was seated at his big partner’s desk by the window. As usual with White, who was gruff and dour even before he turned seventy-five, there was little small talk.

  White slid a sealed envelope across the table to Klain. “I’d like you to bring that back to your boss,” he said.

  Klain nodded.

  “And I have a copy for you if you would like to see it.”

  The letter said White was resigning. Bill Clinton would have the first appointment to the Court by a Democrat since Lyndon Johnson named Thurgood Marshall in 1967.

  Why now? Klain asked. The timing was a little unusual, as there was something of a tradition of justices resigning at the end of the term, in June. White spun an elaborate theory, which Klain had trouble following, about how the Court had now accepted all its cases for the year and that made it a good time to leave. Besides, White added, “I’ve done this job long enough.” Despite everything, White said, he remained a Democrat, and he wanted a Democrat to appoint his successor.

  Before Klain got up to leave, he asked when White planned to release the news to the press.

  “Ten a.m.”

  Klain blanched. It was already past 9:15, and he wanted to make sure his colleagues in the White House weren’t blindsided by the news. Klain had walked to the Court from his home on Capitol Hill, so he had no car to race across town. Should he go back and get it? Catch a cab? He borrowed the phone in White’s secretary’s office and tried to reach Bernie Nussbaum, the White House counsel, or his deputy, Vince Foster. No one was available. And he couldn’t call when he was en route, because cell phones did not yet exist. His panic rising, Klain started dialing any White House number he could remember and finally passed the news to Ricki Seidman, a colleague. He then ran into the plaza in front of the Court and waved down a taxi.

  At 9:45 a.m., Betty Currie, the president’s secretary, was waiting outside the Oval Office for Klain’s arrival. Moments later, slightly out of breath, Klain handed the letter to Clinton, who had already been told its gist.

  “Strange,” Clinton said. “He was just here. He looked good.” The previous week, White had come to the Oval Office to swear in Janet Reno as attorney general.

  “Okay,” Clinton said, handing White’s letter back to Klain. “Let’s talk about this tomorrow.”

  If Byron White wasn’t a typical Democrat, neither was Bill Clinton. That was especially true when it came to the defining subject before the Supreme Court, abortion.

  In 1992, a fiery Texas politico had opened the Democratic Convention with the words, “My name is Ann Richards. I’m prochoice, and I vote.” The remark was a testament to the centrality of abortion rights in Democratic Party orthodoxy. The issue marked perhaps the clearest difference between the two parties, one prochoice and the other prolife. Indeed, Robert P. Casey, the governor of Pennsylvania (and the defendant in Casey), had been denied the chance to speak at that convention in part because of his prolife views. Clinton himself was prochoice; he could never have been nominated otherwise. But Clinton’s view of abortion reflected his centrist New Democrat approach. He recognized that the subject of abortion made many people, especially swing voters, uncomfortable, and he wanted at least to reassure them that he recognized the difficulty of the issue. On the campaign trail, Clinton always used the same formulation when talking about abortion, saying that he believed it should be “safe, legal—and rare.”

  During the campaign, when Clinton discussed the kind of individuals he would appoint to the Court, he expressed himself with characteristic political dexterity—or, seen in a different light, typical doublespeak. He would have no litmus test for his justices—but he would appoint only those who shared his prochoice views. In fact, Clinton had given the subject more thought than most other future presidents.

  On Saturday afternoon, March 20, 1993, the president began to spell out specifically what he wanted in a future justice. In the small dining room adjacent to his private study—later infamous as the site of his trysts with Monica Lewinsky—Clinton met with Vice President Al Gore and White House lawyers Foster, Klain, and Bruce Lindsey to discuss White’s replacement. Almost as a lark, a couple of weeks earlier, Klain and Walter Dellinger, a Duke law professor temporarily on the White House staff before becoming assistant attorney general, had drawn up a list of fifty possible Supreme Court appointees. There were appeals court judges (mostly Jimmy Carter appointees to the federal bench), law professors, a few politicians and private lawyers. The list didn’t amount to much—just a row of names and their current affiliations—but it constituted, at that moment, the full extent of Clinton administration research on Supreme Court nominees. So Klain passed it around.

  Clinton glanced at it. “Look,” he said, “the Court is totally fragmented and it’s dominated by Republican appointees.” (Indeed, White was the only Democratic appointee on the Court.) “It’s not enough for someone to vote the right way,” he said. “We’ve got to get someone who will move people, who will persuade the others to join them. It’s what Warren did. I want someone like that.”

  Clinton thought it was unhealthy that the Court was dominated by former judges, few of whom had what he regarded as adequate real-world experience. Clinton’s term for these judges was “footnote people,” who were caught up in the minutia of law rather than its implications for people. The names of several nonjudges came up, but it quickly became clear that Clinton was most interested in one of them—Mario Cuomo, then governor of New York.

  Clinton and Cuomo had a complicated relationship. Clinton admired
the New Yorker’s way with words but found his indecisiveness maddening. Midway through his third term as governor, Cuomo expected a degree of deference from Clinton that the president did not always display. When Clinton first called Cuomo to discuss the Supreme Court, the governor ducked his call. His secretary told Betty Currie that Cuomo was in budget negotiations with the state legislature and couldn’t be disturbed.

  Several members of Clinton’s staff—notably George Stephanopoulos and Gene Sperling, a top economic aide who once worked for Cuomo—loved the idea of putting Cuomo on the Court. To them, it was just the kind of bold gesture that could transform the Court and burnish Clinton’s own record as well. When Stephanopoulos spoke to the governor by phone, on March 30, Cuomo wouldn’t commit himself, saying, half jokingly, “I can’t believe you’ve descended to this level of groveling exploitation.”

  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 G
uinier 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.