The Nine

by Jeffrey Toobin

  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.

  So Ginsburg looked for cases where laws reflecting gender stereotypes actually penalized men, not women. In one, husbands of military officers had to prove that they were “dependent” spouses to receive certain benefits. In another, Oklahoma law allowed young women between the ages of eighteen and twenty to buy near beer, while men of the same age could not. The Supreme Court struck down the provisions in both cases, ruling that laws could not survive if they were based solely on stereotypes and assumptions about gender differences. These cases, which nominally benefited men, led to the downfall of many more laws that penalized women. In all, Ginsburg won five out of the six cases she argued before the justices. In 1980, President Carter named her to the D.C. Circuit, the second most important court in the nation.

  In light of this background—and Clinton’s commitment to diversity on the bench—it is surprising that Ginsburg’s name came to the fore so late in the process. She had been on Klain and Dellinger’s original list of fifty, but Ginsburg’s tenure on the court of appeals had earned her some skepticism among the more liberal members of the administration. Ginsburg had been a moderate-to-conservative judge, especially on criminal matters, and she often found herself aligned with one-time colleagues Robert Bork and Antonin Scalia. (Scalia and Ginsburg struck up a friendship on the appeals court, based in part on their shared love of opera, and their families celebrated New Year’s Eve together for many years.) In her academic writing, Ginsburg had even criticized Roe v. Wade, which won her even greater suspicion.

  But Clinton was intrigued when Klain came back with Reno’s endorsement of Ginsburg. “Pat Moynihan has been calling me every day saying we should nominate her,” Clinton said. That Moynihan, a New York Democrat, was also chairman of the Senate Finance Committee, which had primary jurisdiction over Clinton’s health care plan, made a gesture to him doubly appealing. Nussbaum added that he had been similarly lobbied by Marty Ginsburg, an old friend of his from New York legal circles, who was as voluble as his wife was reserved. (It was no coincidence that the first two women on the Supreme Court were both married to successful lawyers who were secure in their own careers and enthusiastic backers of their wives’ ambitions.)

  Klain had one caution for Clinton—Ginsburg’s position on Roe. “She’s not where most of the groups are on the issue,” he said. With the Guinier nomination, Clinton had felt his staff did not accurately characterize her law review articles, so the president demanded that Klain produce Ginsburg’s speeches and articles about Roe. He would read them himself. In them, Clinton found that Ginsburg did believe that the Constitution protected a woman’s right to choose abortion, just under a different theory than Roe. She felt laws banning abortion were a form of sex discrimination—a violation of equal protection of the laws—rather than an affront to the right to privacy, as Blackmun’s opinion had held. This was good enough for Clinton. He called Orrin Hatch and ran Ginsburg’s name by him. Impressed by her moderate record on the D.C. Circuit, Hatch said she would have no problem in the Senate. Breyer was told to return to Cambridge, his chances fading.

  Over the weekend, Foster, Klain, and Jim Hamilton, a private lawyer, went to the Ginsburgs’ apartment at the Watergate. Characteristically, for a tax lawyer and a man dedicated to smoothing his wife’s way to the Court, Marty Ginsburg had their records in meticulous order. (The contrast to the Breyers’ messy accounts was stark.) Typically also, in the meeting at the Watergate, Ruth said almost nothing. If Clinton didn’t like Breyer, it was hard to see how he would bond with an icy character like Ginsburg. Still, she would have her interview the following day, on Sunday morning. On Saturday night, the nomination still looked like an open contest.

  That was when Andrew Cuomo called George Stephanopoulos and asked if there was a don
e deal.

  Andrew said that his father’s thinking about the seat on the Court had evolved. The governor believed that Clinton was about to name Breyer, and he thought that there was no chance that Clinton would name two white males in a row. So Cuomo thought his own chances were now or never.

  Stephanopoulos was skeptical. “Are you sure your father will accept if the president calls?” he asked Andrew. “We can’t go down this road again. Before the president even thinks about picking up the phone, we have to be absolutely certain that the answer will be nothing but yes.”

  “Let me check,” Andrew said, then put Stephanopoulos on hold. “I just asked him. The answer is yes.”

  Stephanopoulos called upstairs to Clinton, who was in the White House residence, and asked if he could come up and see him. Clinton gave a bemused smile at Cuomo’s latest peregrination. The idea of a dramatic, transformative choice like Cuomo still appealed to the president. “Mario will sing the song of America,” he told Stephanopoulos. “It’ll be like watching Pavarotti at Christmas-time.” At a party at the British Embassy that night, Clinton told Stephanopoulos that he still wanted to see Ginsburg in the morning, but Cuomo was his first choice. Close to midnight, Andrew and Stephanopoulos spoke again, and they arranged for Cuomo to await a call around six on Sunday evening.

  Clinton and Ginsburg met that morning. Earlier, Nussbaum had passed along an observation from Erwin Griswold, the venerable former dean of Harvard Law School and solicitor general. He said that as Thurgood Marshall had been to civil rights, Ruth Bader Ginsburg had been to women’s rights. That kind of symbolism appealed to Clinton, and he felt more favorably toward her than ever. In their meeting, Ginsburg talked about the early loss of her mother, followed by the near loss of her husband, and her identification with the underdog throughout her life. What Clinton saw—and his aides missed—was that beneath Ginsburg’s reserved exterior was a heroic American woman. To be sure, this was a woman with a big heart.

  Clinton called a final meeting of his selection team for 5:00 p.m. The president was a half hour late, and almost as soon as he arrived, Stephanopoulos was called away to the phone: it was Mario Cuomo. The governor had changed his mind again. “I surrender so many opportunities if I take the Court,” he said, “I feel that I would abandon what I have to do.” Stephanopoulos sheepishly returned to the Oval Office to say that he had been misled once more and Cuomo was definitively out of the running. The following afternoon, Clinton announced the choice of Ruth Bader Ginsburg—arguably his seventh choice—to be the 107th justice of the Supreme Court.

  The ceremony, in the brilliant June sunshine of the Rose Garden, featured Ruth Ginsburg’s tribute to her late mother, “the bravest and strongest person I have known, who was taken from me much too soon. I pray that I may be all that she would have been had she lived in an age when women could aspire and achieve and daughters are cherished as much as sons.” Clinton was weeping as he walked Ginsburg back inside the White House, but Brit Hume, then of ABC News, asked him about “a certain zigzag quality of the decision-making process here”—which was, if anything, an understatement.

  Clinton all but snarled a response: “I have long since given up the thought that I could disabuse some of you from turning any substantive decision into anything but a political process. How you could ask a question like that after the statement she just made is beyond me.” The president’s outburst dominated the following day’s news, but Ginsburg’s appointment received good reviews. As Hatch promised, there was no confirmation controversy. Her hearings lasted three quiet days in July, and Ginsburg was confirmed by a vote of 96 to 3.

  The Ginsburg nomination turned out to be an apt metaphor for the Clinton presidency as a whole. The process that led to her selection was chaotic, but the result was admirable—the selection of a universally respected justice who reflected, with great precision, the moderate-to-liberal politics of the president who chose her. Indeed, more than any recent president since Johnson, Clinton was able to use his appointments to shape the Court in line with his own views. Still, even years later, he seemed embarrassed by the events leading up to Ginsburg’s selection. Clinton devoted less than 2 of the 957 pages of his memoir to her nomination—one of the most consequential acts of his presidency.

  As for Mario Cuomo, he gave varying explanations over the years for why he turned down the appointment in 1993. He would have lost his right to speak out; he cared too much about economic issues that wouldn’t come before the Court. Mostly, Cuomo said, he felt that he was the only person who could hold on to the New York governorship for the Democrats. But, of course, he didn’t, losing to George Pataki in 1994. After a failed stint as a radio talk show host, Cuomo returned to law practice in New York City.

  6

  EXILES RETURN?

  On July 20, 1993, the first day of Ginsburg’s confirmation hearing, Vince Foster killed himself. The deputy White House counsel, a close friend of both Clintons from Little Rock and a key figure in the Supreme Court selection process, never acclimated himself to the rough-and-tumble of political Washington. There, for the first time in his life, he had faced public criticism, and the pain of this experience exacerbated an apparently long-standing inclination toward depression. In the White House, the sadness over Foster’s death to some extent overshadowed the triumph of Ginsburg’s nomination.

  Clinton’s entire first year was characterized by similarly vertiginous swings of good and bad fortune. Politically and otherwise, this president lived on the edge. In August, Congress passed Clinton’s economic plan—by a 218–216 vote in the House and 50–50 in the Senate, with Vice President Gore breaking the tie. The following month, Clinton hosted the historic handshake between Israeli prime minister Yitzhak Rabin and Chairman Yasir Arafat of the PLO on the South Lawn of the White House. But the Clintons’ health care plan, the ostensible reason George Mitchell turned down the nomination, went nowhere. And the controversy over the Clintons’ 1979 investment in an Arkansas land deal known as Whitewater escalated. In January 1994, Clinton asked for an independent counsel to examine his conduct and determine if there were any grounds for prosecution. That investigation, of course, would mutate through the remaining seven years of Clinton’s presidency and lead to his impeachment.

  The year 1994 amounted to a slow-motion disaster for Clinton. Ethical controversies, none major in themselves, kept popping up—among them the disclosure of Hillary Clinton’s windfall profit in commodities trading, the resignation of Associate Attorney General Webster Hubbell, and the prolonged investigation of Foster’s suicide. On February 11, a former Arkansas state employee named Paula Jones held a raucous press conference at a conservative political event, claiming unspecified misconduct by Clinton in a Little Rock hotel room. Health care reform, the centerpiece of Clinton’s presidency, continued its march toward irrelevancy, then death, in Congress.

  In the midst of this dismal year, on April 6, Harry Blackmun announced his resignation. Unlike White’s departure the previous year, this change did not come as a surprise. In his separate opinion in Casey, Blackmun had all but announced his plans to leave the Court. “I am 83 years old,” he had written in June 1992. “I cannot remain on this Court forever.” The election of a prochoice president, and then White’s replacement by Ginsburg, told Blackmun that his monument, Roe v. Wade, was safe for the foreseeable future. (With Ginsburg, the 5–4 margin in Casey had become a 6–3 prochoice majority.) At Renaissance Weekend in December 1993, Blackmun had given Clinton a strong hint that he would retire the following year, and that is what he did.

  The transformed political environment of 1994 changed the selection process—and the Court itself. The constitutional right to choose abortion may have been safe, but a conservative movement was cresting. Democrats still controlled the White House and both houses of Congress, but the momentum was with their adversaries. To some extent, the shift reflected the immediate political problems of a new administration, but there were deeper trends at work, too. The judicial co
unterrevolution had been in the making for a long time.

  In April 1994, Clinton began the search for Blackmun’s replacement much the way he did for White’s thirteen months earlier. Again, Clinton wanted a politician instead of a judge, and again he asked George Mitchell to take the seat. The Maine senator had already announced that he would not run for reelection in November, so there appeared to be few obstacles to his accepting. But Mitchell told Clinton that he wanted to make one last push for health care as majority leader. Taking the appointment would doom the legislation, he said. In the end, Mitchell just didn’t want to be a Supreme Court justice. After a period of agonizing, Bruce Babbitt also took himself out of the running.

  Clinton’s search for a Supreme Court justice returned to its customary location—square one. This time, though, there was a seriousness and discipline that had been lacking the previous year. Clinton had already thought about most of the likely candidates. His own deteriorating political status made a consensus choice virtually a necessity. And there was, finally, the recognition that Blackmun’s replacement would likely be the last appointment that Clinton would get to make. By Supreme Court standards, the remaining justices were relatively young in 1994. For a generation of putative Democratic appointees, it was now or never.