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Background Briefing by Senior Administration Officials

June 14, 1993

The Briefing Room

3:30 P.M. EDT

[Name Deleted]: Let me begin and welcome you here, and explain to you who is here on the podium and on the stage, and then go through the arrangements that we'll have here today. This is a BACKGROUND BRIEFING. I'll introduce everyone, and then we'll go to the senior White House official is the appropriate reference. In this context, there's no video of anything proceeding here.

[names deleted]

SENIOR ADMINISTRATION OFFICIAL: Good afternoon to all of you. I think, as each of you recall, the President spoke about a possible Supreme Court appointment during the campaign, and had two basic tenets that he discussed. First, he was well aware that this decision and appointment would be a major and a significant decision of his presidency; and that this appointment would clearly leave an imprint on the Supreme Court. As all of you are aware, this would be the first Supreme Court appointment by a Democrat in over a generation, I believe.

Secondly, after the election, he also spoke of some of the broad criteria that were important to him. He discussed the qualities and characteristics of the person that possessed a big heart, that understood and cared about people, and lived a real life, and a key intellect.

As you know, Justice White resigned on March 19th, and I would be remiss if I did not underscore the extraordinary tenure that Justice White served -- as a Supreme Court Justice. Justice White gave the President a large amount of time to make this decision, and the President made good use of that time. He had the time to search broadly and reflect deeply. And we feel this certainly enabled a very ordered and a very reasoned decision.

The President, with a number of people that are here today who can discuss some specifics in more detail, instructed all of us to cast a very wide net. We looked at over 40 people in some detail and depth. That was a diverse list. As you would anticipate, it certainly had many distinguished Americans from all walks of life in it. It included private lawyers, judges, political figures and academicians.

In the end, I think, as the process moved forward, there were over 3,000 opinions that were read by over 75 lawyers that worked in the process, all serving on a pro bono basis, led by Jim Hamilton. There were over 5,000 newspaper and other articles that were gleaned and reviewed in that process.

Finally, the time during this period allowed the President to consult broadly both on a bipartisan basis and on and off the Judiciary Committee. That, I hope, provides a perspective and an overview of the process, which [names deleted] and others can go into considerably more detail.

As the process grew -- ******* -- the President had a number of people that he had been thoroughly impressed with, both from the readings of their works and, in some cases, personal acquaintances and, in some case, deep friendships. He had first met Justice Ginsburg a number of years ago in Little Rock when she gave a speech there. He was Governor, and he and the First Lady attended that speech and he was impressed with her comments, I believe at the University of Arkansas in Little Rock, although I'm not absolutely sure that was the form of the event.

Let me emphasize one aspect that was very clear to me during this process and should have become very clear today in Justice Ginsburg's commentary. This was a positive decision on the part of the President. He was thoroughly impressed after his meeting on Sunday with exactly what you saw in her eloquent commentary today. She was substantive, thoughtful, knew very well what she stood for and believed in, clearly has a proven ability that thoroughly impressed him to build a consensus in her tenure on the Appeals Court, was a centrist in her legal philosophy and was always well-reasoned and substantive in her decisions.

Secondly, however, as you saw today in what was, to all of us, a very moving commentary -- and I had just had the privilege and pleasure to meet Justice Ginsburg and her family prior to the announcement -- was a deep feeling and commitment to her family and a real understanding that the Supreme Court and the decisions related thereto affect individuals' lives deeply and personally. Both of those characteristics certainly came through in her comments today, and that's what impressed the President and made him feel this was the best decision despite having, or in light of having a number of very well-qualified candidates for the Court that he referred to in his comments.

[Names Deleted]

SENIOR ADMINISTRATION OFFICIAL: I think my role here is to try to moderate to the decree I can. So we're going to go through this order, if we can. [name deleted] is going to talk to us a bit about the process of review. And then [name delted] is going to talk about her judicial philosophies, some of her decisions that were important here in the review. We have two people who are going to -- [Names Deleted] is going to walk through some of the tick-tock and some of the President's thinking particularly here toward the closing stages.

So we'll do this fairly rapidly and then we'll open up questions, if that's all right.

SENIOR ADMINISTRATION OFFICIAL: Actually, I think it will probably be more useful when you ask questions, because a lot of what I'm going to say [name deleted] has already sort of touched on.

Justice White resigned on March 19th. The next day -- I believe it was the next day -- there was a meeting in the Oval Office. I was in Puerto Rico; I wasn't at that meeting. That was the best day I've had in the search, actually. (Laughter.)


SENIOR ADMINISTRATION OFFICIAL: That meeting -- [Names Deleted]. And a list which we had prepared in advance, my office had prepared in advance, just in case a Supreme Court justice should resign -- and I certainly didn't expect Justice White to resign on March 19th or I would not have been in Puerto Rico.

A list of 50 people were handed to the President. Ruth Bader Ginsburg was on that list of 50 people handed to the President. Thereafter -- look, Justice White -- we knew right at the outset Justice White had graciously given us a great deal of time. And we had been through a very intense attorney general selection process, as some of you may be aware -- I don't know if you know about that --and we were going to take that time.

We knew we had until late May, early June -- maybe even late June -- but, hopefully -- we want to take our time. And we wanted to take the time that Justice White basically gave us, because all a justice has to do is be ready to be sitting on the first Monday in October, and we had plenty of time to achieve that aim.

So we took that list of 50 people and we cut it down somewhat. But overall, actually, we didn't cut it down that much, because overall, we really took a fairly close look at over 40 people -- probably 42 people, I would say. We prepared -- and this is not an easy thing to do -- intensive profiles, eight- to ten-page single-spaced profiles on about 40 people. It takes time to prepare these profiles. You've got to read their writings, or some of their writings; you've got to look at newspaper clips. It's basically a public record kind of search, but it's supposed to be an analytical public record kind of search. This was not a resume of 40 people; this was a mini biography of 40 people. And we had a number of lawyers on our staff, led by [name deleted], basically, who was in charge of this process and did a tremendous amount in this area, preparing these resumes -- these biographies, not resumes -- these, really --these mini biographies, these nine-, ten-page biographies. Some of them are longer, actually; some are a little shorter.

For example, by the end of April, we had profiled 25 of them; at least, yes about 25. I have a figure of 24, but I think it was more. And -- was Ruth Bader Ginsburg. We were looking -- we cast a wide net -- we were looking at federal judges, we were looking at state judges, we were looking at political figures, and we were looking at academics --but we had made -- we looked at women, we looked at men, we had -- list, we had Hispanics, we had African Americans, and Jews -- people from every ethnic group. We were really trying to cast a wide net because we had the time; Justice White had given us the time. If he hadn't resigned that early, we would have taken -- now, initially, our focus was -- and this was why -- the President was very interested in looking at people who had never been judges before, who didn't have judicial experience. We were looking at people who had broad public experience.

We thought of, I must say -- and I'll tell you -- we thought of the 1954 Supreme Court a lot; that's a Supreme Court which had nine justices who ruled in Brown v. Board of Education, and I believe --maybe I'm wrong -- not a one had -- really had any significant judicial experience if they had any judicial experience. You had three former senators -- Mitten, Burton and Black; you had three attorney generals or solicitor generals -- Reed, Clark and Bob Jackson. You had two academics -- Frankfurter and Douglas; and you had a governor, Earl Warren. So, here's a Court with vast public experience and not a lot of judicial experience.

And, initially, the President was looking and focusing, to some extent -- could we find somebody with vast public experience, like some of those people on the 1954 Supreme Court? But it was limited to that. At the same time, we kept looking at judges, federal judges, state judges and academics and lawyers as well. And it took time. And that's -- that's basically -- we had numerous meetings with the President over this period of time -- 15, 20 meetings -- at the Residence, at the Oval Office -- detailed meetings in which names were discussed, philosophy was discussed.

As these profiles were prepared, we would give them to the President. The President would then read them; he reads everything, and he knows what he reads. And he comes back and he starts asking you questions. What you do is go out and do more research, because maybe you didn't pick up something in the profile at this point. And that's what took a tremendous amount of time, this process.

Finally, we started narrowing it down to people, and we narrowed it down to political figures, some political figures, and we narrowed it down to some judges.

My colleague is going to get into some detail with respect to the end of the process, but we narrowed it down. And, ultimately, during the last week -- the last two weeks, I would say, of this process, we focused on one political figure -- Bruce Babbitt; and two judicial figures -- Steve Breyer and Ruth Bader Ginsburg --all of whom had been on the list virtually from the beginning. Babbitt was on the initial list, Breyer was on the initial list --one of the most distinguished federal judges of the United States; and Ginsburg, another one of the most distinguished judges on the initial list. And we narrowed it down, ultimately, to those three, and then ultimately the President obviously decided yesterday the he would appoint, after meeting with her, that he would appoint Judge Ruth Bader Ginsburg. That's a general overview of what took time and the kind of detail we went into.

[name deleted] mentioned we had an outside team of lawyers. We had 75 lawyers, at least 75 lawyers working on this. They were headed, as [name deleted] mentioned, by Jim Hamilton, who headed the vetting process during the transition, who headed all the vetting for Cabinet members. Obviously it was a very serious vet. We had pro bono lawyers all over the city reading thousands of opinions, thousands of articles, thousands of books, and then making phone calls, as appropriate, when certain people were more intensively vetted than others.

SENIOR ADMINISTRATION OFFICIAL: Judge Ginsburg's judicial philosophy in three minutes or less. (Laughter.) Look, I want to divide this into two areas and discuss them very briefly. The first is her record as a litigator on behalf of women's rights, which the President spoke to today. And I think when you go back to the '70s and you look at the cases, the 11 she filed briefs into the Supreme Court, and the six she argued -- what distinguishes these cases and the approach Judge Ginsburg took in the '70s I know impressed the President, was a view that the cause of women's rights could be (UNM)

what distinguishes these cases in the approach Judge Ginsburg took in the '70s that I know impressed the President was a view that the cause of women's rights could be advocated without taking anything away from men, that it wasn't an "us versus them" cause. And so if you look at the patterns of her litigation, it's attacking benefits programs that preferred men in various different ways, and her response that wasn't that the benefits program should be abolished, but rather the same benefits should be extended to women that were extended to men.

Frontiero versus Richardson is a classic example of that involving benefits for service people. Weinberger, Goldfarb, the Social Security cases are other examples of that. It was a very inclusive litigation strategy aimed at equality, and a very successful one. As the President said today, Judge Ginsburg personally presented oral argument in the Supreme Court six times and prevailed in five of those cases, which is, obviously, a superb record.

With respect toward her judicial philosophy on the bench for the past 13 years, as the President said today, Judge Ginsburg is widely known as a centrist, a moderate, whatever term you choose to use. I think if you look at her on the Court of Appeals in terms of who she votes most often with, she votes quite often with both the liberal block and the conservative block. She's definitely in the middle of those blocks in the D.C. Circuit Court of Appeals and has friends on both blocks, and has been known as a consensus-builder on that court which has been divided.

Some of her most significant cases on the Court of Appeals -- in the field of civil rights include Wright versus Regan, a case she wrote that was reversed by the Supreme Court, where she wrote that African American students had the standing to challenge the tax exempt status of all-white schools. CCNV versus Wadd, a first amendment case where she upheld the free speech rights of individuals to protest in Lafayette Park. DKT Memorial Fund, a dissent where she wrote striking down a dissent that was in opposition to a D.C. Circuit opinion that upheld the Mexico City policy of the Reagan-Bush administrations. Goldman versus Secretary of Defense, the case that's been referred to earlier today as well about service people wearing yarmulkes in the service and being allowed to wear yarmulkes in the service. A series of environmental cases, particularly one of the early cases attacking the bubble rule of the Reagan administration -- NRDC versus Gorsuch. Her decision on the independent counsel case where she dissented against an opinion by Judge Silverman which had struck down the independent counsel law as unconstitutional. And her dissent was vindicated by the Supreme Court on an 8-1 vote. As well as a variety of decisions in the criminal law area that I think most observers think are middle of the road, upholding bail reform, upholding the career criminals act, as well as throwing out some convictions as well. It is, I think, a very, very centrist record.

One area that's obviously been a subject of some discussion with respect to Judge Ginsburg is her views on reproductive freedom and abortion rights. She wrote an essay in 1985 and gave the Madison Lectures earlier this year. It's a very nuanced and elaborate view that I certainly can't do justice to here right now, but I think it's fair to say that Judge Ginsburg has been a clear supporter of a woman's right to choose. She has critiqued the rational and the approach used in Roe, has advocated a different approach to this end, but nonetheless, has left no ambiguity about her support for a woman's right to choose and has actually spoken quite eloquently to it.

[Name Deleted]

SENIOR ADMINISTRATION OFFICIAL: There was an initial round of communication with the Hill when Justice White resigned. There were initiated contacts with the President and others in the White House, suggestions were advanced. As the President got further down the road, there was another substantial round of consultations -- bipartisan at all times. And, again, over the last week, substantial bipartisan consultation on and off the Judiciary Committee. It is our expectation that we'll be able to move expeditiously under the Committee rules, which require thorough review by the Committee staff. They will do their own work, and we will respect that, but we're prepared to comply with the work quickly with them.

We will have a confirmation team, which will include [names deleted], both well experienced, well versed in this process. I think what I'd like to do is let [name deleted] talk for a moment or two about -- some of the things we plan to do near-term, and then we can elaborate on it during the question period.

SENIOR ADMINISTRATION OFFICIAL: Judge Ginsburg will begin her courtesy visits tomorrow with Senator Moynihan who will --yes, Judge Ginsburg will start her courtesy visits tomorrow with Senator Moynihan who has asked to help take her through to meet other senators and help make her confirmation swift and easy.

Like my colleague said, there is a lot of work for the Committee to do, but we're hopeful that her confirmation can be finished by the August recess. We will be sending materials to the Hill -- the background that you all got today, plus additional information analyzing Judge Ginsburg. She has a lot of -- she's done a lot of writing and public speaking, both prior to her going on the bench and on the bench.

One of the things I think will be interesting to watch as this confirmation process develops is that I think that there will be broad support. And people who know me know I have a little bit of experience on the other side in these confirmation matters. And one of the -- I think one strong principle that the Committee has developed in looking at the Supreme Court nominees in the advice and consent process is the judicial philosophy of the nominee. And I think [name deleted] brief description of the cases and what you will read shows that Judge Ginsburg is really balanced and fair, that she's not an ideologue.

The President did not choose her by lining up her decisions and checking off to see how many agreed with; and if he agreed with all of them, he would pick her, he chose her for her qualifications, her ability, her strength as a consensus builder and for her character. And you may find people who disagree, as [name deleted] said, with one or another of her decisions, but I don't think that there will be any significant opposition, because she is balanced, fair, and approaches her decisions on a case-by-case basis.

SENIOR ADMINISTRATION OFFICIAL: We'll go quickly to the questions. Let me just try and give some sense of last week. As [name deleted] pointed out, we kind of came into the last week, and Secretary Babbitt, Judges Breyer and Ginsburg were really the leading candidates in the President's mind. I think it's fair to say that, as the President pointed out in his statement this week, as the week went on, as you know, Secretary Babbitt, it was reported, was vetted intensively Sunday evening. But as the week went on, the President became more impressed by the need to keep Secretary Babbitt at the Interior Department. He was told time and time again that Secretary Babbitt was doing a terrific job at the Interior Department, and he felt it would be a real loss at the Interior Department if Secretary Babbitt couldn't stay. And I think that that was something that developed over the week. He felt that when he was taking responsibility for the whole government and all the decisions he has to make in government, he simply couldn't afford to lose the Secretary at the Interior Department.

At the same time, he had these two very well qualified candidates in play. I think it's also important to stress, because Babbitt had his vet on Sunday night, and as you know, Judge Breyer had an intensive vet on Thursday up in Boston. [names deleted] . Nothing found in any of the vets was disqualifying in any way for any of the candidates, obviously with Judge Ginsburg; but that also holds for Justice Breyer and Secretary Babbitt. They all passed the vets and we found no disqualifying problems whatsoever in the intensive background checks this week.

The President met every day on the Supreme Court appointment, generally with this group, along with [names deleted], more towards the end of the week. I think they were relatively brief meetings at the beginning of the week, under an hour, just discussing what had been found in the vets and what was the different factors at play. It probably started to intensify Wednesday. The decision was made to send everybody up Thursday and talk to Judge Breyer. They had a good conversation with him, and the President asked to see Judge Breyer on Friday. As you know, he had lunch with the Judge on Friday. It was about an hour and a half in the President's private dining room. It was a very good, broad discussion over a lot of issues. And they covered a lot of ground, although not necessarily a lot of specific cases as they went through the lunch; more a discussion of philosophy and judicial outlook and the ways that the justices would bring people together on the Court, because that was always one of the President's prime concerns.

I think, as [names deleted] said earlier in the process he had been looking beyond the bench for a candidate. And I think the reason was that the President's top sort of substantive criteria was somebody who was really going to move the court and have the ability to bring the different justices together.

After his meeting with Judge Breyer on Friday, we met again Friday evening, had a good discussion. And I think it was at that time, after the President finally did come to the realization that he really couldn't afford to lose Secretary Babbitt that he asked to see Judge Ginsburg as well on Sunday. She couldn't come up on Saturday; she was at a wedding in Vermont. So he had made the decision on Friday, and they were talking to the Judge on Saturday while she was in Vermont a little bit, getting some background work. But he wasn't able to see her until Sunday morning at around 11:00 a.m. They met for about an hour and 25 minutes on Sunday morning.

They had, again, a good conversation.

I think a lot of what they talked about on Sunday morning had to do with, again, how she viewed the decision-making process on the Court, and how she came to her decisions and how she came to building consensus. They did talk in her discussion about some specific cases. They did talk about Goldman v. Secretary of Defense. They did talk a little bit about her career as a lawyer after law school, and what the President said to us today is that he just found the entire meeting quite moving when he put her personal life story together with her work on the Court.

He was impressed that she was somebody who had really worked on the Court; a workhorse, not a show horse. And he said that in every one of her answers, she had a kind of self-effacement, but also a real strength of character that kept coming back and back again at him. She did say that she wanted to be on the Court, but she felt that she had spent a life trying to advance the cause of women, and she felt that she could continue to do that from her seat on the Court. But she also was very interested, and one of the things they talked about was her view of standing, and how her work -- a lot of her life's work was dedicated to figuring out who should have a seat on the Court, who should have a say before the Court. And as I said, he was just impressed throughout that conversation. And that was really the turning point in the final --what finally tipped the balance toward Judge Ginsburg. I mean, this was a very tough decision for the President, because these were very well qualified, very distinguished candidates. But I think that after their talk on Sunday, he was really coming to the point of making a decision.

He threw the staff together again around 5:00 p.m. on Sunday afternoon and told us that he would like to go forward with Judge Ginsburg, and the rest of the evening was spent more or less implementing that decision. Just to go into the -- after the press dinner last night, he went back to the Residence and made several phone calls. He made probably (UNM(

several phone calls. He made probably nine phone calls last night. He talked to Senators Mitchell, Biden, Hatch, Kennedy, and Moynihan. He also had one last -- and he tried to reach Dole, but Senator Dole was not available last night. He also had one last conversation with Janet Reno. He spoke with -- then he made the call to Judge Ginsburg, and it was a great phone call.

I know that [name deleted] had told her not to go to bed. (Laughter.) At around 11:00 p.m. he called --

SENIOR ADMINISTRATION OFFICIAL: I called her at 11:00 p.m. and told her she would be receiving a call from the President; please do not go to sleep. (Laughter.) She assured me she wouldn't go to sleep, that she was emotionally -- she was visibly moved. But I told her not to go to sleep.

SENIOR ADMINISTRATION OFFICIAL: Unfortunately, we had a little trouble with the White House operator around 11:30 p.m. The President first called and couldn't get through. He kept saying, "Hello, hello, hello." It didn't work and he finally did get some sort of connection and said, "Did I wake you up?" And -- but they couldn't keep on talking, so he said, "Hang up. I'll call you right back." And he dialed it himself. (Laughter.)

And then he said, "If I'm going to propose, we might as well have a good line." And then he just said, "I'm going to ask you to accept this position tomorrow." And said, "I feel real good about this." And then he went out and told her why. As he said in his statement today -- why he chose to pick her. He said she had had an outstanding record on the bench, that she had built a career as an independent mainstream progressive jurist. He thought that what she had done for women's rights was a signal achievement in this century and he thought that she could be a real leader in the Court. Those were the three reasons that he went forward with her. He just said he felt real good about this; said, "You have a lot of character."

I think she was -- I couldn't hear the other side, but I think she was a little bit stunned on the other side, and she said, "Oh, there's so much I wanted to say. I felt I didn't say anything." And he said, "You did fine," and said, "Just speak from your heart and your mind tomorrow."

This morning he called Speaker Foley and Chief Justice Rehnquist, and I think he got through to Senator Dole this morning. And then we spent the morning getting ready.

Q: The phones worked in the morning?

SENIOR ADMINISTRATION OFFICIAL: The phones did work in the morning. (Laughter.)

[name deleted] might have some more to add to that.

SENIOR ADMINISTRATION OFFICIAL: [name deleted] had very good details. He called her last night at 11:33 p.m.; called her from the kitchen in the Residence. And I think there were some comparisons the fact that the Suns game had gone to three overtimes, and that seemed to be -- there were some similarities to the process. (Laughter.)

SENIOR ADMINISTRATION OFFICIAL: There were just two other things. He did call Judge Breyer and Secretary Babbitt, and he was --

Q: When was that?

SENIOR ADMINISTRATION OFFICIAL: Right before midnight, after he had spoken to Judge Ginsburg. I think Judge Breyer was about 11:55 p.m. or so, and Secretary Babbitt was right around midnight, a little before. Judge Breyer was -- he said, "I've decided to appoint somebody else," but he said he was very impressed by his meeting with Judge Breyer, considered him very well-qualified for the bench and expected him to be a major contender for a seat on the Court for sometime. And Judge Breyer was just -- moved, but he was also very gracious.

And also Secretary Babbitt, he just called up and said that he had never seen an outpouring of support for a Secretary of Interior like he saw after -- (laughter) -- the Secretary was chosen. He said, "That was truly a testimonial to you." They had a good conversation for a few minutes.

I guess that's pretty much all.

SENIOR ADMINISTRATION OFFICIAL: That's right. He told Bruce Babbitt, I had people calling in saying that if you quit, -- if he quits, I want his job. But you're crazy as hell if you let him do it.

Why don't we go to questions for about a half hour or so. You can fire away any way you want.


Q: Why shouldn't Judge Breyer think that the taxes problem was a key problem in the decision? Why wasn't the President's appearance billed as a news conference when he would take only one question? What upset him so much? Doesn't he expect that we would probe this question of people being put out in front as front runners one minute and then pulled?

SENIOR ADMINISTRATION OFFICIAL: Let me say that we had discussed the Social Security issue extensively with a majority of the Judiciary Committee and had received very clear assurances that the circumstances that Judge Breyer faced were not, in the minds of a bipartisan majority of the Senate Judiciary Committee, disqualifying. And so when that assertion is made, it is supported by having specifically checked it with the folks who were going to handle the confirmation.

Q: Why would you say that it was not an important element? It was a law.

SENIOR ADMINISTRATION OFFICIAL: It was a factor that was weighed. And obviously, the White House had known about this, the President had known about this for some time. I don't know how many weeks but --


Q: Why didn't the Judge know about it for some time? I've been saying that for years.

SENIOR ADMINISTRATION OFFICIAL: Well, Judge Breyer was very forthcoming with regard to the White House about this subject. It was a fact that was weighed. There were a number of calls that were made to the committee about this. There was a feeling on the part of the President this was not disqualifying, consistent with the policy that he had enunciated in the exchange of letters with Joe Biden -- Senator Biden -- back in April. There were two letters written by the President and by Howard Paster to the Chairman about the fact that this should not be disqualifying. And there was a letter back from Senator Biden.

And I think the records will show that, since that time, over two dozen nominations have gone forward from this administration to the Congress, of individuals to serve in the administration. It was not regarded as disqualifying. There was a consultation with members of the Congress about it, but to go back to George's point, the pivotal event came with the conversation he had with Ruth Bader Ginsburg on Sunday.

I think there were a number of us here who feel that she made such an impression, that that turned the event. And that, absent that, I think a number of us feel that he might well have gone forward with Judge Breyer today.

Q: Well, I still don't understand why he can be a judge and evade the law.

Q: Can we do this in order? Helen asked three questions. Can you just finish with hers, and then go on to someone else?

Q: How can he evade the law? You didn't finish the question. How can he evade the law? Social Security is the law.

SENIOR ADMINISTRATION OFFICIAL: We have a policy we studied. We'd be glad to share the papers with you.

Q: Why was it billed as a news conference, and what upset the President so much that he wouldn't take one more question?

SENIOR ADMINISTRATION OFFICIAL: I can't speak for the President. [name deleted], you may have a better view on this than I do. My sense was -- and it was every -- it was -- I think that, as you all, know, prior to the time that he went out there, it was stated that he would be available for questions.

Frankly, I felt that he was so moved by her statement, it was an emotional moment for him. I think you felt that -- those of you who had the opportunity to be there felt the power of the moment. Listen, I have had the opportunity to be in the Rose Garden on many occasions, as have many of you, when statements have been made, and you know how often in the past people have called them "Rose Garden Rubbish." And you know that was one of the most eloquent statements anybody has had -- in my years, has had the opportunity to hear in the Rose Garden, and I think it was very moving for him. And I think he felt the sense of the moment that it was better to move on, that there will be ample opportunities on other occasions when you'll have opportunities to ask questions of him about the process or about what he did.

But I think it was a tribute to her more than anything else. That was my sense of it.

SENIOR ADMINISTRATION OFFICIAL: Also, I think it's true -- and also her family and Senator Moynihan had gotten up and congratulate her - -

Q: That had nothing to do with her. One question put to him concerning him.

SENIOR ADMINISTRATION OFFICIAL: We had a backgrounder scheduled, and we had planned to have other opportunities for you to ask questions.

Q: So there was a plan ahead of time for the President not to answer questions?

SENIOR ADMINISTRATION OFFICIAL: No, there was no plan at all. I was quite the other way around. I felt there was a hush that came over the group out there, because she had made this very powerful, moving statement. The President had been visibly moved by the statement when he read it shortly before he went out there. He read -- he got a copy of it about 15 minutes before.

Q: The party line is that it's not disqualifying. But you have said it was a factor that was weighed. Can you give us a sense as to how much weight the fact that he did not pay those taxes bears on the President's decision? Now, I know it wasn't disqualifying, I know that it had bipartisan support. But in light of Kimba Wood and Zoe Baird, it had to have some impact on the decision. We need to know what kind of weight or what percentage of these things --

SENIOR ADMINISTRATION OFFICIAL: In the end, this is as much a matter of intuition as anything else. You have a feel for a person after you talk to them, and there was a lot of information on a lot of the candidates. But Judge Breyer was a strong candidate straight up until Sunday afternoon. When the President had a meeting with Judge Ginsburg, he came away from that meeting convinced that she was the best person for the court at this time, and that she could make the best contribution.

Q: Could you really have allowed him to go forward with nominations that perhaps would not have engendered a controversy similar to the others, but perhaps, as two senators suggested yesterday, would have? And could you have allowed him then to face the questions that would inevitably been asked of how could he do this again after being burned by it three times?


Q: Are you prepared to advise that that was okay?

SENIOR ADMINISTRATION OFFICIAL: There was a great deal of sentiment among his advisors that Judge Breyer was highly qualified for the Court. But I want to go back to this: Judge Breyer did not lose this nomination, Judge Ginsburg won this nomination. That's an important distinction.

Q: The Social Security issue -- was it given just a legal scrub, or was it given a political scrub?

SENIOR ADMINISTRATION OFFICIAL: Well, I think anytime [name deleted] calls up a member of the Senate and talks through the counsel and asks their views, how can --

Q: It's the law.

SENIOR ADMINISTRATION OFFICIAL: -- wait a second. Can you distinguish --

Q: Was it a personal decision or a legal decision on the Social Security issue?

SENIOR ADMINISTRATION OFFICIAL: When you ask a senator his judgment or her judgment about the wisdom of moving forward, playing out all the facts, I don't think there's any way you can separate out what the mix is and the answer you get. What we did find was a number of senators -- and I don't think we had anybody who said don't go forward.

Q: didn't know that Janet Reno gave an opinion on this a while ago?

SENIOR ADMINISTRATION OFFICIAL: I'm sure her opinion was very wise. Let's move forward.

Q: Thank you. This is actually for [name deleted]. When the President initially talked about what he was looking for in a nominee, he said he wanted a nominee with a commitment to a broad right to privacy. Judge Ginsburg has written actually criticizing the foundations of Roe and suggesting a different foundation, and she's been unwilling to extend the right of privacy to protect homosexual conduct. Can you point us to something in her background that's consistent with what the President said he was looking for in that direction?

SENIOR ADMINISTRATION OFFICIAL: Yes. I think that the Madison lectures, which is her most recent statement on this, has been a bit misconstrued and misinterpreted. What you see there is her criticizing the court's reliance solely on the right to privacy as a basis for the decision in Roe, and her encouragement that gender discrimination also be added to the mix. But I don't think the Madison lectures criticize the right to privacy as part of this decision. I think that if you look at the broad brush of her work, there is support for the right to privacy there. And with respect to the decision about the gay sailor, again, I think if you parse the opinion carefully, she felt constrained by Supreme Court precedent that she felt ordained the outcome in the case, and there's a footnote in there that specifically reserves a distinction between her and the opinion in that case.

Q: Didn't she basically criticize Roe as to broadly stated, as too broadly drawn?

Q: And that it was a mistake by the Court to have inserted itself --

SENIOR ADMINISTRATION OFFICIAL: I think she reached the same conclusion.

SENIOR ADMINISTRATION OFFICIAL: I think what she's saying there is, as a matter of judicial tactics, as a matter of a way to getting to the a broad social acceptance for a woman's right to choose, that the Roe decision was a bad tactical maneuver in that way. But she was very clear in saying two important things: One, she supports a woman's right to choose and, two, she supports it in a broad way. And I think you have to take her critique out of her experience in litigating women's rights in the 1970s, where a very successful, incremental approach was used over the course of a decade to win equal rights for women in our society.

Q: One other question. What is the difference between her conviction and the conviction of people like the Chief Justice, who believe that this should be left at the political branches to decide?

SENIOR ADMINISTRATION OFFICIAL: Because Ruth Ginsburg does not think this should be left to the political branch -- what she says in the Madison lecture is two things: One, with respect to the way the Court went about legally protecting a woman's right to choose outside the political process, equal protection should have been part of that. And, two, she also, then, says that if that had been the way it had gone, the political process could have been helped along to also protect a woman's right to choose. But she does not abandon judicial protection for a woman's right to choose; indeed, she advocates a very strong form of judicial protection for a woman's right to choose.

SENIOR ADMINISTRATION OFFICIAL: And she would have struck down the Texas statute. That's the key. She would have struck down the Texas statute. So she wasn't just leaving it to the political process solely.

Q: [name deleted], last week we were told by senior officials that this process had narrowed to just two people, Breyer and Babbitt. What on Friday, after the lunch with Breyer, prompted the President to want to open that up a little bit and bring in Ginsburg?

SENIOR ADMINISTRATION OFFICIAL: It wasn't Friday. We were intensively vetting Ruth Bader Ginsburg starting Tuesday or Wednesday prior to the Friday. She'd always been on our list. We had prepared detailed biographies. We had read a sampling of her opinions. When I say what we did on Tuesday or Wednesday prior to the Friday meeting was going now to read everything she wrote --everything, 500 or 600 opinions, all her articles, all her books. What we were always trying to do was make sure the President had more than one choice.

As the issue with respect to Babbitt was becoming problematical because of the reasons [name deleted] gave, namely the tremendous desire to keep him in the Interior Department, it was my responsibility as [deleted] basically to make sure that when the President made a final decision, he would have more than one person on the table.

Ruth Ginsburg was always a serious candidate before he ever met - - before the President ever met with Breyer. We wanted to get the President also in the position also to consider Ginsburg.

Q: Who made the decision to give her the shot Sunday? Why her on Sunday? Why not someone else on Sunday?

SENIOR ADMINISTRATION OFFICIAL: I think there was another point which has to do with the timing when Ruth Ginsburg got an additional look. Tuesday night at the Congressional Picnic, a significant number of members of Congress raised with the President and with others of us their concern about the impact of Bruce Babbitt leaving the Interior Department. And it was a very strong and lasting impression. And the notion of having more than one candidate began to become an issue because of the intensity with which this issue was raised. They really want him there.

SENIOR ADMINISTRATION OFFICIAL: So the President -- the bottom line was that as he moved away from Bruce Babbitt and there had always been a serious consideration of Ruth Ginsburg, but the full reading of her works had not started. It started in mid-week. And by Friday, they had a very good judgment about where they were, felt very comfortable. And as we were reviewing Friday night where he was on Judge Breyer, we discussed what other options he wanted to have, because he had always wanted to have two options.

Q: Did he want a woman in particular?

SENIOR ADMINISTRATION OFFICIAL: There were several names that were then discussed on Friday night. And a decision was made in that group then that he wished to bring Judge Ginsburg in. That's where he wanted to look in order to have this other option. He very much wanted to meet her. And there were questions about where she was. It turned out she was in Vermont for the wedding, and he couldn't do it Saturday.

Q: So when Breyer faded and Babbitt faded, you had a list of five or 10 or whatever --

SENIOR ADMINISTRATION OFFICIAL: No, Breyer didn't fade. Breyer didn't fade -- that's the point.

Q: Who decided, let's go ahead with her. Of all the other possible remaining nominees --

SENIOR ADMINISTRATION OFFICIAL: The President decided on that Friday night.

Q: What was Mrs. Clinton's role in all this?

SENIOR ADMINISTRATION OFFICIAL: When the President met with Ruth Bader Ginsburg alone yesterday -- Mrs. Clinton was in Chicago yesterday, giving an address -- the two of them met alone in the Residence for about an hour and a half. There was nobody from staff or anything else there.

SENIOR ADMINISTRATION OFFICIAL: She wasn't a part of any of the meetings this week.

Q: During this entire process --

SENIOR ADMINISTRATION OFFICIAL: Out of the number of meetings I attended I think she was in one -- in mid-week.

Q: How did her name surface on Tuesday. Why out of this list that you had was she the one you decided to add to it and give the President two choices?

SENIOR ADMINISTRATION OFFICIAL: This was basically --we were discussing with the President all week. We were talking about creating additional options, as Babbitt sort of started --became problematical. And we discussed what kind of person he would want, and he described the criteria of the kind of person he would want. The kinds of things mentioned in the statement -- a centrist, a moderate, a consensusbuilder. And Ruth Bader Ginsburg met those criteria. So we told him that we can complete the vetting process, basically, because we had done things before, and he said, go ahead, read the opinions. And we read the opinions.

SENIOR ADMINISTRATION OFFICIAL: Let me add to that. There were a number of -- as a number of names were reviewed Friday night as a potential -- other people who might come in. And arguments were made pro and con on a lot of them. One of the arguments that impressed the President came from Senator Moynihan who had sent down a copy of a letter that had come in from the President of Columbia, as well as an article that -- or part of a talk that Irving Griswold had given on the 50th anniversary of the Supreme Court's building, in which, as the President of Columbia had said, that a number of people believe, in effect, that Ruth Bader Ginsburg has accomplished in her life for women's right what Thurgood Marshall had done for the rights of African Americans. And that was a -- in addition to the consensus-building and her distinguished record as a jurist.

Q: opinion?

SENIOR ADMINISTRATION OFFICIAL: There was a lot of unsolicited advice.


SENIOR ADMINISTRATION OFFICIAL: A lot of unsolicited opinions.

SENIOR ADMINISTRATION OFFICIAL: Unsolicited opinions. Moynihan's calls were unsolicited. These letters that came in on our behalf were unsolicited, and we were very impressed --

Q: [name deleted], can you draw a little more finely for us what was in the Ginsburg discussions with the President that was not in the Breyer discussions? What impressed -- a little comparison there of what sort of turned him on about --

SENIOR ADMINISTRATION OFFICIAL: I don't know about a comparison. It was just what he felt on Sunday after talking to her. I mean, as [name deleted] said, he had laid out the criteria of consensus-builder, of somebody of deep conviction. It was just really the approach they were taking to the Court. But again, I mean, it's just not a helpful comparison because, as [name deleted] said, she just, she won this. It wasn't anything that Breyer lost. The President felt after meeting her that she was the person who could best meet the criteria of a mainstream activist he had set out, someone who could really move the Court.

Q: What did Breyer not do or what was he lacking to not make the same connection, the same chemistry that --

SENIOR ADMINISTRATION OFFICIAL: They had a very good lunch and they had a good talk --

Q: Why didn't he walk out Friday or Saturday and nominate him if he did have the same kind of feelings with Judge Breyer as he had with Judge Ginsburg?

SENIOR ADMINISTRATION OFFICIAL: Well, again, one of the things I would point back to is when the President talked about his meeting with Judge Ginsburg, I think he was especially impressed by how her life story was interwoven with her work. I mean, here was a woman who, as she said today --

Q: Was Judge Breyer less personal?

SENIOR ADMINISTRATION OFFICIAL: No, I don't know if that's it exactly. But Judge Ginsburg has a very unique life story and a very unique history. She's a woman who broke into the ranks of the legal profession at a time when others couldn't, and she was a pioneer and a path breaker in the field of women's rights. And that was something that came out of her own experience and it was reflected in her work. And the President -- that's something that had a deep impression on the President.

Q: [name deleted] said at the beginning that the President was initially focusing on the idea of appointing a public figure, a political figure, and he obviously talked with Governor Cuomo -- we know that -- and he talked about Governor Riley. But at the end, you ended up with two judges. How did that move along? Was there a decision that he made as the process went along that tended to weed out the political figures and concentrate on judges, or did it just kind of end up that way?

SENIOR ADMINISTRATION OFFICIAL: I think -- I don't know if there's an exact way to parse that out -- but again, I think what you saw in Judge Ginsburg, although she had not been an elected official, a lot of her work before the court, when she was in private practice for the ACLU, the cases she was bringing to the courts in the 1970s had that aspect of public life as well. And it was something that her real activity in the real world made a difference. But I don't think there was any one point where you can say, okay, no more --

SENIOR ADMINISTRATION OFFICIAL: Actually, I think on Sunday night the President, in effect, really had three choices. I was never sure myself -- I can't speak for the others -- I was never sure, in the final analysis, he might not choose Bruce Babbitt. Bruce Babbitt was fully vetted. I wasn't sure. He was a public figure in the end who could have been chosen.

SENIOR ADMINISTRATION OFFICIAL: One thing we couldn't figure out was there were some stories coming out that did not reflect some of the internal things, and we couldn't quite figure out -- it was story like Thursday --

SENIOR ADMINISTRATION OFFICIAL: Breyer -- it was his to lose.

SENIOR ADMINISTRATION OFFICIAL: It was his to lose. An AP story Thursday night saying it was his to lose. And we all sort of --some of us were trying to say, wait a minute, that's not quite where we are. That he has an excellent chance, but it was certainly not his to lose. And we were trying to be cautious at that point. If you talked to us, we were trying to be very cautious, don't assume anything at this point.

Q: Since we're having to write this story on the process, can we get on the record, was the job offered to Governor Cuomo? What exactly were the conversations? Can you give us -- can anybody explain, were all the stories wrong, the assumption wrong? Were we all --

Q: Who did he get to the point with that he got to the point with Governor Cuomo, that is to say can we go ahead with the next stage of intensive vetting process? He got to that point with Governor Cuomo. I think he got to that point with Secretary Riley. Obviously, he got to that point with the last three candidates.

Q: Ruth, I can't quote you. I'd like them to --(laughter.) Were there any others other than those that you got to that point?


Q: The point of intensive -- were there more people intensively vetted --

SENIOR ADMINISTRATION OFFICIAL: Yes, more people were intensively vetted.

Q: So at the time on Friday night when he said, all right, let's call Ruth Ginsburg, bring her in -- were there other potential backup candidates that you were ready to go with?


Q: Can someone just tell me -- maybe I'm the only one who doesn't know -- about Cuomo and Riley. What happened?

SENIOR ADMINISTRATION OFFICIAL: Governor Cuomo's letter speaks for itself. He asked not to be considered.

Q: What prompted that letter?

SENIOR ADMINISTRATION OFFICIAL: I think that President Clinton's interest in -- belief that Governor Cuomo would make a great Supreme Court justice is no secret.

Q: So Cuomo read this in the newspapers and wrote a letter - - is that right?

Q: Did the President call?

SENIOR ADMINISTRATION OFFICIAL: The President did call him and talk to him --

Q: Is there any concern about the Jewish seat, that there's no seat from going back to -- was there any talk about that in the White House?

SENIOR ADMINISTRATION OFFICIAL: I was hoping --(laughter.)

SENIOR ADMINISTRATION OFFICIAL: [name deleted] was trying. (Laughter.)

SENIOR ADMINISTRATION OFFICIAL: Yes -- with many factors that were listed, that was a factor. But it was not a very important factor. It was something that if you find the right person and that person happened to be Jewish, then you could say you fill the Jewish seat. But really, it was not a driving factor. There were a number of people on the list that were Jewish, many more that were not Jewish.

Q: Did you ever consider a non-lawyer? It's been discussed that maybe Jimmy Carter was even on the list at one point.


Q: No non-lawyer was ever considered?

SENIOR ADMINISTRATION OFFICIAL: No non-lawyer was ever considered.

Q: Have the Ginsburgs paid all their Social Security taxes on anybody they might have employed?


Q: And secondly, [name deleted] said that there was interest in the President's part on moving the Court. Moving the Court where? Doing what with the Court? What is the President's agenda for the Court? Well, he said it, not me. (Laughter.)

SENIOR ADMINISTRATION OFFICIAL: Moving the Court to consensus on whatever issues before it.

SENIOR ADMINISTRATION OFFICIAL: Can I just take a quick stab at that? We have a very badly fractured Supreme Court right now, and I think that one thing that impressed the President about Judge Ginsburg was her reputation as a healer, I think was the phrase that was used today -- a moderate, someone who could bring people together and build more consensus and collegiality on the Court. And it was -- moving the Court in that direction as opposed to some sort of ideological --

Q: Would the President like to see more 6-3 or 7-3 decisions?

SENIOR ADMINISTRATION OFFICIAL: I think he certainly thinks, as a lawyer and someone who has been a law professor, that it would be healthier for the country if the Court was a less divisive, less bitter dissents. Judge Ginsburg is one of the leading critics of bitterness in judicial opinions and judicial dissents. It would be healthier if that institution functioned in a less rancorous way.

Q: like to moderate and what issues would he like to see them moderated on?

Q: Was it the opinion of the advisors and the President that Judge Breyer would have gotten some opposition from the Senate you did not want to have at this time?

SENIOR ADMINISTRATION OFFICIAL: We did not identify any opponents to Judge Breyer in the Senate, and it possibly may have emerged, but nobody in our consultations said they would oppose Judge Breyer.

Q: Did the President see in Judge Breyer the healer aspect that he was looking for or did he not?

SENIOR ADMINISTRATION OFFICIAL: -- as a consensus-builder, chief judge on a court where he was the only Democrat with five Republicans. I think those qualities were included --

SENIOR ADMINISTRATION OFFICIAL: We promised we'd hold it to an hour. Can we take a couple more questions.

Q: There is a lot of speculation about more retirements on the Court, and the President today spoke very highly of both Breyer and Babbitt as potential nominees for new vacancies. Were we supposed to take that as just nice healing words on his part and consolation towards the losers, or is he really interested in looking at them again?

SENIOR ADMINISTRATION OFFICIAL: There is no list. But he did feel that the process helped him enormously in thinking about potential future appointments.

Q: statements this afternoon by people from the American Way and Alan Gershowitz that, in fact, Judge Ginsburg was not a healer, not a consensus builder, that she has been contentious, that she has had difficult relations with her law clerks. Was that a problem in your review and did you run across that with other people?

SENIOR ADMINISTRATION OFFICIAL: No, that's not the generally accepted view.

Q: Is it fair to say that for whatever reason, Judge Breyer didn't "wow" the President in a telling, personal way? Because you mentioned that after the lunch Friday night, he said, let's bring in one more person.

SENIOR ADMINISTRATION OFFICIAL: It was -- the process of looking more seriously at Judge Ginsburg occurred well before the luncheon with Judge Breyer. It happened, as we said, during mid-week.

Q: That was you. What about Clinton?

Q: As of Friday, we were told -- Friday afternoon --that the two finalists were Babbitt and Breyer. So something had to happen after we had everybody in the office --

SENIOR ADMINISTRATION OFFICIAL: At that time, he had not --

Q: It just sounds like he liked Judge Breyer as a second choice to everyone else. He was a good second choice, and when it came down to actually picking a second choice he still felt, well, he's a good second pick --

SENIOR ADMINISTRATION OFFICIAL: I don't think that's accurate. I think in the end -- in the end it came down in my mind -- again, maybe I have a different slant -- in the end it came down in my mind to Bruce Babbitt, highly unlikely because of what we --the President was starting to feel, but still possible on Sunday night. If the President said to me, Bruce Babbitt, on Sunday night I would not have gone through the floor. We were looking for somebody who was not a judge and this makes sense. And if he feels he can handle the Interior problem, that's fine. Bruce Babbitt was still alive in my view on Sunday night. Steve Riley was still alive, clearly alive on Sunday night. And Ruth Ginsburg was alive on Sunday night. And he just weighed it all and he came up -- he had three great options, I thought, three wonderful people, and he made the decision to go with Ruth Ginsburg.

Q: But when did the President decide that he wanted to see Ruth Ginsburg face to face?


Q: After the Breyer --

SENIOR ADMINISTRATION OFFICIAL: Yes, but that was part of the notion of reviewing a number -- to go back to this point, he always wanted more than one choice. He always wanted the position of having -- being able to have more than one choice.

SENIOR ADMINISTRATION OFFICIAL: You could also say that he made that decision Friday night, after having had a significant week of contacts about taking Secretary Babbitt from the Interior Department. You can say that as easily as saying after Judge Breyer.

Q: Did he read any of her opinions, and if so, which ones?

SENIOR ADMINISTRATION OFFICIAL: Yes, we read her opinions. We have extensive memorandum --

Q: No, did the President read any of Ginsburg's opinions?

SENIOR ADMINISTRATION OFFICIAL: The President was given these memoranda with respect to her opinions.


SENIOR ADMINISTRATION OFFICIAL: Extensive memoranda describing opinions in various areas and details. He wasn't given slip sheets of the opinions, but he was given extensive memoranda of her opinions. Actually, he was given them with respect to Judge Breyer as well.

Q: What role did Janet Reno play in the selection process? How many times did she and the President meet and talk?

SENIOR ADMINISTRATION OFFICIAL: He talked to her several times.

SENIOR ADMINISTRATION OFFICIAL: I think he talked to her over the last several days a few times. And I know that other -- [name deleted] had conversations with her, [name deleted] talked to her a few times.

SENIOR ADMINISTRATION OFFICIAL: Janet was present at key meetings in the White House and was continually being consulted by my office. I had contact with her continually. The President had fairly constant contact with her.

SENIOR ADMINISTRATION OFFICIAL: And she made it clear that she thought it would be very good for the Court, whether it was in this nomination or a future nomination, to have additional women there. And the President did listen to her, and he called her --when he called her Friday night, he said, I want you to know that your advice and counsel has been very helpful to me in this process.

Thank you very much.

END4:35 P.M. EDT

William J. Clinton, Background Briefing by Senior Administration Officials Online by Gerhard Peters and John T. Woolley, The American Presidency Project

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