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Press Briefing by Lloyd Cutler, Special Counsel to the President

April 06, 1994

The Roosevelt Room

4:50 P.M. EST

MS. MYERS: I think we're ready to start. This is on the record. So, without further ado --

Q: Mr. Cutler, could you start by talking a little about what timetable you foresee for naming a new justice?

MR. CUTLER: Well, let me start by saying I've been asked to brief you on the process we're going to follow in screening and then nominating a Supreme Court justice. And as the President said this morning, it's going to be my responsibility along with the Chief of Staff and Phil Lader, his Deputy. I'm sure we'll have lots of others.

It's really the President's decision, and our job is to serve up to him all the information we can put together about people who ought to be considered, and perhaps our recommendations among that group. But it's his decision to make. We'll be working closely with the Attorney General and the Department of Justice who have always taken part in this process in the past.

It's probably one of the most important things a president does is to nominate justices of the Supreme Court. President Carter, as you know, may remember, never had a chance to nominate anyone in his four years. Ronald Reagan and George Bush between them nominated five justices. And the fact that they were able to do the nominating made a major change in the character of the Court and its opinions that will last well beyond the Bush and Reagan administrations.

President Clinton has been fortunate up to now to have two nominations in two years. I think he did very well on the first nomination in nominating Justice Ginsburg and that she will serve as an excellent Supreme Court justice and have a lasting effect on the Court well beyond President Clinton's time in office. And he wants to accomplish the same thing with his second appointment.

I would, in response to your question, I would say we hope to get this done within a matter of weeks as promptly as we can. It will be a major priority for the group that is working on it and for the President. It has to be done as speedily as possible but with great care in the light of the importance of the decision that's going to be made.

It's only a year ago that we were considering the first appointment, so we have an inventory of the people who were under consideration at that time. And there are others who have come to deserve the fullest consideration since then. And probably the total number of people that we'll be looking at fairly closely will be the order of perhaps in the low double digits.

And this is not a foregone conclusion. It isn't a perfunctory process -- one person we really want and a bunch of --. It's a serious inquiry into who would be the best person.

Q: What about -- if you take -- I don't want to get into hypotheticals too much, but what about if Mitchell were nominated sometime before the President felt that things had progressed enough in the Senate for him to go through confirmation? What -- is there a conflict there that he has to -- is there a precedent for keeping him on in the Senate?

MR. CUTLER: Well, this is a -- it's a question of political judgment that certainly isn't for me to make, but will require careful consideration.

Senator Mitchell, as you know, is the majority leader. He is a major figure in carrying out the President's legislative program. And the impact of appointing him, if that were the final decision -- and I don't want to suggest that of even leaning necessarily in that direction -- we would have to weigh the impact of that on the legislative program.

There are precedents. There are some seven sitting senators who have been appointed to the Supreme Court of the 110 or so that the President talked about this morning. Hugo Black was a sitting senator. Jim Byrnes was a sitting senator when appointed. Harold Burton, who President Truman appointed, was a sitting senator.

There are precedents for legislators after being nominated remaining as active legislators until after they were confirmed. Mikva who was the congressman from Illinois, as you know, who was named back in my time in the Carter administration started as an active legislator for an extended period between the time of his nomination and his confirmation which was delayed some time by, I think really, by the Republicans and the opposition at the NRA because this was 1980, an election year.

Q: Did the President ask you to find in his guidance to you, if there is such guidance yet, a consensus builder?

MR. CUTLER: Does he have to what?

Q: Did he ask you to find a consensus builder?

MR. CUTLER: No, he has -- we have not yet had a talk about this particular nomination. But he has indicated in the past that among the many criteria you look for -- character, judicial temperament, judicial experience, political or other experience in the real world, interest in little people -- one of the justices he admired particularly was Chief Justice Warren who was a centrist and a consensus builder. So, certainly, that's another factor I would imagine he would take into account.

Q: You mentioned the President has mentioned this before. Is this to you before this immediate period or just in his --

MR. CUTLER: No, I'm drawing back on the time when I wasn't here, but the remarks he made in the run up to appointing Justice Ginsburg and what he said when he appointed her.

Q: Mr. Cutler, can I clarify when it was that Justice Blackmun indicated privately to the President that he would not serve another term?

MR. CUTLER: My understanding is, first, that at some earlier time during the year he indicated to the President that this might very well be his last year on the Court. But he did not make a final decision about that or the timing of his announcement until this week.

There were rumors that we heard, and others, that applicants to be his law clerks next year were encouraged to apply. Justice Brennan, his great friend who retired a year or so ago, is now saying to everybody, because he feels so much better, I should never have left the Court.

And we didn't honestly know whether he had made a final decision until this week when he called Joel Klein, the deputy counsel, who had been a Supreme Court Clerk and whom he knew quite well, to say he had made a decision and he wanted to explore what would be the best timing -- this week, next week, et cetera, from the President's point of view. And that news was given to the President and the timing decision was made between them yesterday.

MR. GERGEN: In fact, those calls occurred on Monday.

MR. CUTLER: The first call --

MR. GERGEN: The first call here came on Monday and Joel informed the President on Monday.

Q: There's been speculation today that there was in fact a deal that the President -- that the Justice told the President at Renaissance Weekend that he was going to go this year, and that that figured into Senator Mitchell's decision not to run for reelection because there was already a deal that he was going to be named. Could you disabuse this or that?

MR. CUTLER: I cannot disabuse you of it, but conspiracy theories never die. In fact, I would very be skeptical of that.

Q: The President did not share that information with the Majority Leader?

MR. CUTLER: I have no idea. I have no idea. But it was common gossip certainly among lawyers, law clerks, et cetera, that Justice Blackmun would probably retire during this year. But whether he would do it now or June at the end at the term or when, or at all --

MR. GERGEN: I don't know for a fact. We can check that. I am skeptical of it as well. But it's also been my -- it's been in the press that this was likely to be his last year. I think there had been stories, a number of stories earlier in the year to that effect.

Q: Sir, your list is in the low double digits. How much of that reflects politics? In other words, often the Supreme Court list is a desire to satisfy constituencies simply by mentioning a certain group. How many people in that list fit that mold? How political is --

MR. CUTLER: Well, I want to make clear, this is not a game. It is not that we have somebody in mind and then we want a number of other people as stalking horses to weigh in the balance. The 10, 12, whatever that I've referred to are those who were very seriously considered the last time around or those who, in our judgment, we think deserve serious consideration. I'm not counting all the letters we'll get and phone calls, think of so and so. There have been a number of people -- we will run down anything we get. But I'm talking about the serious ones.

Q: Several years ago, a Hispanic lawyers group said it was our time that Hispanics were represented on that Court. Has the President ever conveyed anything to you that he considers that a serious thing that needs to be discussed?

MR. CUTLER: Well, considering judicial nominations in general, certainly the President, I believe it's fair to say, has been quite interested in finding well-qualified Hispanic nominees.

Q: Do you know if one is going to be considered, one or more, for this position?

MR. CUTLER: I certainly would not exclude that possibility. I don't want to talk about particular individuals.

Q? Was there research before this announcement with the rumors coming out? I mean, have you done any advance work on this?

MR. CUTLER: Well, we had a lot of work done -- not we, before I got here a lot of work was done under Bernie Nussbaum and by the Department of Justice a year ago in preparation for Justice Ginsburg. And a lot of that carries over and is being brought up to date. And then, as I said, there are other people who have come to deserve consideration since then who are under active study right now.

Q: Mr. Cutler, when you mentioned the precedence of sitting senators and stuff. Was that something that has just recently been researched or is that something --

MR. CUTLER: Well, I think there was some talk of at least one legislator the last time around, but certainly there's been more active research today, yes.

Q: Last time around, Governor Cuomo pulled himself out of consideration. Does that leave him out of consideration or is this a new day?

MR. CUTLER: Well, I think he's rather busy running for office. But once again, I don't want to include or exclude any individual.

Q: Mr. Cutler, besides yourself, who are the other team members who are going to be involved in this process?

MR. CUTLER: Well, first, of course, the Chief of Staff and Phil Lader. In the Counsel's Office, Joel Klein, who's the Deputy Counsel; Vicki Radd, who is in charge of screening most judicial appointments. There will be a group in the Justice Department that we'll be working with. And we always get very good advice from Mr. Gergen, Mr. Stephanopoulos, all their friends.

Q: Mr. Cutler, in the last search for a Supreme Court nominee the White House relied on a group of some 75 private lawyers to vet prospective nominees. Are you doing that this time as well?

MR. CUTLER: They will continue that process. They will update those people, and we -- the lawyers to update the new people.

Q: Will you let us know who they are?

MR. CUTLER: I don't know what we've done in the past.

MR. GERGEN: I doubt it. You mean the outside lawyers?

Q: The outside people. You didn't last time.

MR. GERGEN: Why should we change?

Q: Well, why shouldn't you let us know?

MR. GERGEN: Well, I was not -- I guess I had just come aboard when a lot of this happened. But I was not aware of it -- how we handled the 75. We'll look at that.

MR. CUTLER: What they do essentially is to make a detailed analysis of written opinions and articles, et cetera. It's not extensive personal interviews or anything like that.

Q: Mr. Cutler, you said you expect the process to take a matter of weeks. Would you assume that the process would take about the same amount of time as for Justice Ginsburg, or would you think less?

MR. CUTLER: I hope less time. I hope a good deal less time, in part because a number of the people under consideration were under consideration the last time.

Q: When might confirmation hearings begin then? Would they begin in the --

MR. CUTLER: As I understand it, the Senate Judiciary Committee rules require a waiting period of eight weeks or more between the time of the nomination and the beginning of the hearings. I think in Justice Ginsburg's case it did start in the seventh or eighth week, but that's because the Republicans agreed to waive some of the technical committee rules. So if you figure eight weeks after a nomination, and then, once again depending on the candidate -- that there is, a couple of weeks for hearings, and then a committee vote. You're probably talking about process of the order of 10-12 weeks after nomination.

Q: But you would like a justice confirmed --

Q: you hope for it in weeks. Is there an inference of weeks, not months, or is --

MR. CUTLER: I think that's fair to say.

Q: Weeks not months.

Q: If I could ask David a question. Even though you legally could nominate George Mitchell and have him continue to service as Senate Majority Leader while in this process, before confirmation, do you think that politically that would be quite complicated, particularly at a time you're pursuing such a big legislative proposal as health care? Or do you think that's basically something that's kind of doable and wouldn't be a big problem?

MR. GERGEN: Well, I think Mr. Cutler put it well in the statement when he said before he got to the legal question, he talked about a matter of political judgment -- political judgment had to be made on that. And I think that's a thing the President would want to weigh. I'm sure there will be some consultations on that question that will occur. But I would also underscore the point that Lloyd also made about don't assume anything about there's a leaning one way or the other about the candidates. We're responding to questions because of the nature, the issue you're raising; we feel it's important that we respond today to that. But we don't want to do that -- we want to do that in the spirit of understanding that there is no leaning one way or the other.

Q: I recognize that you already said you haven't had a session with the President to sit down and go over a search list. But do you get any sort of sense or do you have any sort of idea as to the attributes of a candidate you're looking for as far as particular issues are concerned; someone who would fit the same type of --

MR. CUTLER: Every president does, and I think most people concede, has the right to select nominees who have the basic judicial temperament, character, ability, qualifications to be a Supreme Court justice, but who generally share the president's sense of values -- constitutional values, political values, et cetera. But there is no single litmus paper issue that would rule anybody in or out.

Q: How soon would you expect the President to be able to sit down with possible candidates?

MR. CUTLER: Once again, I have to say all within a matter of weeks.

Q: Any lessons learned in the experience last time around that will be applied this time?

MR. CUTLER: I think there's a desire not to take as long as last time, and not to float names around as much they were floated the last time, meaning, to control our own leaks.

Q: Any lessons learned from some of the administration's other vetting experiences that will sensitize you and the other advisers in this process?

MR. CUTLER: You say from other administrations?

Q: No, no, from the administration's other vetting experiences about what went on for finding the AG and some of the other nominees were --

MR. CUTLER: We're now 15-16 months into this administration. And issues that people didn't think were serious at all -- I think most of them have been -- by now, like the nanny problem, similar problems. No, I don't think vetting is going to be a difficulty. Most of these people are quite well-known anyhow. The basic job will be to appraise competitively their various qualities.

Q: To what number does the short list need to shrink before candidates are actually sitting down with the President? How many people do you expect he'll talk to?

MR. CUTLER: Well, last time he sat down with, what, two, three? It really varies. And it also varies with whether the people recommended are people he personally knows over a long time, or whether they're judges whose reputation he knows but who he has not yet really met.

MR. GERGEN: Joel, you might describe just for a minute -- there was some effort after the last selection in the Counsel's Office to begin pulling together more information on various candidates.

MR. KLEIN: Articles, opinions, analyses of various people. And that has been an ongoing process.

Q: You talk about the qualities that you look for. In the post-Bork climate of confirmation, do you have to be careful or very conscious of avoiding someone who has written an article or issued an opinion that might serve as kind of lighting rod that could give you confirmation difficulties, even if in the larger sense of things it's not something you would be concerned about?

MR. CUTLER: Well, it is certainly true that people who have written and debated frankly, especially scholars, have a lot to deal with when they come up for confirmation. But on the other hand, your ideal candidate is not someone who has written nothing and can therefore not be challenged. You don't want a cord of nine milquetoasts, or nine blank ciphers, or nine ordinary lawyers. You want people who have minds, who speak out. So you have to balance that.

MR. GERGEN: We've asked Mr. Cutler if he's available -- (Laughter.)

MR. CUTLER: I'll be glad to take one term. (Laughter.)

THE PRESS: Thank you very much.

END 5:10 P.M. EDT

William J. Clinton, Press Briefing by Lloyd Cutler, Special Counsel to the President Online by Gerhard Peters and John T. Woolley, The American Presidency Project

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