A recently released memo by a Clinton confidant confirm accounts that President Clinton just didn’t want to appoint Stephen Breyer to the Supreme Court.
The deliberations went down to the wire, and when Stephen Breyer’s name came up each time, he was not the person the President, in his heart, preferred.
“At this point BC [Clinton] also said he did not want to name Breyer,” wrote Diane Blair in May 1994 just two days before he was ultimately selected. “Didn’t want to give a big deal to Massachusetts.”
That’s where Breyer, then 55, was serving. Apparently naming someone from that reliably liberal state would not pay political dividends.
It’s remarkable that Clinton, a constitutional law professor, would put rewarding a liberal state before shaping the jurisprudence of the Court.
Most of this is recounted in The Nine. But the memo, per CNN, adds some new details, considering how Clinton selected Breyer over Richard Arnold:
Blair’s memo says this was “HRC [Hillary Clinton’s] greatest concern, makes it seem he’s [Clinton] is not taking this, his greatest legacy, seriously, if [he puts in] someone who may die in 5 years of less time.”
Arnold stayed active on the bench until his 2004 death.
But Arnold, in Blair’s mind, was clearly the best choice and she strongly urged Clinton to “go ahead and appoint RA, because that’s what he really wanted to do.”
The President was not even remotely close to a decision, and he urged Blair to speak with his wife after their conversation.
The first lady was “wild” about the issue of Arnold’s health. Blair paraphrases her close friend saying, “BC wouldn’t even think about naming someone from Neb. or Iowa if they had possible cancer threat– so why do it just because he knows the guy,” writes Blair.
“If HRC carried the day, and sounds as if she is, it will be Babbitt. She’s not wild about him. Wishes there were a 3rd choice. But there isn’t. Which in itself is very, very sad and strange,” according to Blair’s notes.
After hearing Arnold’s medical prognosis from the doctor, Clinton later that day made up his mind. It was Breyer.
The final decision was sudden, and Clinton wanted it public immediately, before his pick could get down to Washington. So Breyer wasn’t even present when the announcement was made.
And Bill considered appointing Hillary? (I suspect HRC would not be a fan of the jabot).
It all began a year earlier soon after Clinton took office in 1993. Justice Byron White was retiring and the President had his first chance to create a legacy with a high-profile pick.
Sources said Clinton had lots of ideas of who should sit on the high court– too many, in the eyes of many White House staffers. Names included New York Gov. Mario Cuomo, Senate Majority Leader George Mitchell, and Education Secretary Richard Riley.
All turned him down.
Interior Secretary Bruce Babbitt’s name was quietly leaked, but Senate Republicans made clear he would face a rocky confirmation.
Clinton even briefly considered naming his wife to the court– which he labeled an intriguing, “sexy” idea– but was quickly talked out of it, according to former top White House aide George Stephanopoulos, in his memoir.
“We don’t need another gang-that-couldn’t-shoot-straight story,” reluctantly concluded the president, according to Stephanopoulos.
Anyway, how must this make Justice Breyer feel?
Update: At the time of the RBG appointment, Clinton said the process was not political.
President Bill Clinton abruptly ended the press conference announcing Ruth Bader Ginsburg’s nomination to the Supreme Court when he was asked by Brit Hume about why the selection process had seemed to have “a certain zig-zag quality.” “I have long since given up the thought that I could disabuse some of you turning any substantive decision into anything but political process,” objected Clinton, before walking off. (June 14, 1993)