On Friday, Bill Clinton's presidential library released a new set of previously-restricted internal documents from his administration. One of those memos, from March of 1993, gives a fascinating glimpse into how Ruth Bader Ginsburg almost wasn't nominated for the Supreme Court.
The memo deals with a vacancy on the court that arose early in Clinton's first year, when Justice Byron "Whizzer" White announced his retirement. Soon afterward, Clinton had a meeting with advisers, and, as Jeffrey Toobin wrote in his book The Nine:
"Look," [Clinton] said, "the Court is totally fragmented and it's dominated by Republican appointees... 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 [Earl] Warren did. I want someone like that."
In that meeting, Clinton quickly decided that the person he wanted was... New York Governor Mario Cuomo.
But Supreme Court appointments are so important that the president needs to appear to consider several candidates, and get outside advice from others. So, in the newly-released memo, which was written three days after the meeting Toobin describes, Associate White House Counsel Ron Klain grapples with the challenge of making the administration seem to have an open mind.
"To what extent do we conduct a 'search' if the President has made up his mind?" Klain asked. "Do we cast a broad net for prospective candidates if the outcome is basically preordained?" The name of Clinton's choice is redacted in the memo, but it's clear from the reporting of Toobin and others that it was Cuomo. Here's the plan Klain laid out:
- Kiss Senate rears: Several important senators and particularly Judiciary Committee Chairman Joe Biden had made "their desire to be consulted" quite clear. "If we fail to do so," Klain wrote, "we will engender considerable ill-will towards our nominee."
- Make a diverse short list, containing some very liberal candidates, so it will be leaked: The list for these senators "should contain some names that will be even less desirable to conservatives than" Clinton's pick (Cuomo), the memo says. "It should also reflect geographic, gender, racial, and professional diversity. We should assume that the list, in its entirety, will be leaked to the press."
- Get women to cover you for not picking a woman: Klain suggests that Clinton call senators Dianne Feinstein and Carol Moseley-Braun because "we will need them to back us up if we do not choose a woman."
- Get a secret sneak preview of top lawyers' reaction: "Before we proceed with" Cuomo, Klain writes, "We should ask the ABA [American Bar Association] for a 24-hour 'read' on him: an informal process whereby they poll their Committee members and give us a 'sense' of their likely evaluation of him. This would be confidential on both sides (we could not disclose that we had done this), and would not prevent the ABA from issuing a lower rating later."