Press Briefing by Lloyd Cutler, Special Counsel to the President
The Roosevelt Room
4:21 P.M. EDT
MS. MYERS: Let's establish the ground rules -- this will be on the record.
MR. CUTLER: That means you're not going to get any useful information. (Laughter.)
But it's obvious, I think, that one of the most important functions a President has is to nominate people to be on the Supreme Court. The Supreme Court is a major, major factor in the government of the United States. It's been called, as you know, the least dangerous branch, but in many ways it has the most lasting impact of any of the branches. And a president's appointments have an effect that go on well beyond his term or his two terms.
President Carter, I remember, served four years and never had a single Supreme Court appointment. And the fact that he didn't, and that all those appointments passed to President Reagan, made a major difference in the formation of the Reagan -- and what it actually --.
This is President Clinton's second chance. I think he was quite successful in his first choice. And I think the country received it very well, and over time it will be -- turn out to have been an excellent appointment. He wants to do fully that well for the second appointment. And that means thorough consideration. It means prompt and very expedited consideration. And, of course, it's his responsibility. Our mission, together with the Attorney General and the Justice Department is to present to him the possible choices and everything we know about them, and to some extent, of course, our recommendations. But obviously these are his decisions to make.
We're going to set about this process immediately. We've been at work on it for sometime because it's been anticipated for some months that there might be a second appointment sometime this year, or if not this year early next year. It's only a year ago that the last selection was made, so we have good inventory of people to work with. It's going to take a certain amount of updating. There are other people who deserve consideration who were not seriously in the running the last time around. All of that will be done, and we will present our recommendations and our conclusions to the President as promptly as possible. But they will be very carefully done.
Q: Assuming hypothetically that the President might want to appoint a sitting member of Congress, are there any legal problems that might arise? And, in particular, would you need legislation passed to get around the Emoluments Clause problem?
MR. CUTLER: Well, there are both legal problems and political problems depending on where -- there is the Emoluments clause. There had been solutions of that problem in the past. And should everything else work out and the Emoluments Clause be the only obstacle, I'm personally confident that a solution could be found.
Q: Last time the process involved aides talking sometimes even on the record about who the candidates were. It involved people being led through Union Station in front of television cameras. Has a decision been made to try to do this process more privately?
MR. CUTLER: Well, I'm not going to talk about who candidates are or what names we are considering. And, in theory, I'm to be the spokesman for the White House is doing on this. And it remains to be seen what actually happens.
Q: Well, has the President made any suggestions to look into --
MR. CUTLER: No.
Q: He has no sense of --
MR. CUTLER: We have not yet met with the President either to go over a set of criteria or a preliminary list.
Q: The President has talked about a government that looks like America. Does that mean that you feel that you have any special responsibility to seek candidates are minorities?
MR. CUTLER: Well, there are lots of criteria, lots of factors that you would take into account. There are some very obvious ones like judicial demeanor, character, temperament, innate legal ability -- all of those are terribly important. We have certainly learned over the years that diversity, looking like America, is important. Without Justice Marshall it might have taken us much longer.
Q: I'm sorry, I couldn't hear. Did you say diversity, looking like America is appropriate?
MR. CUTLER: It is important. It's an important factor to be taken into account. Certainly without Justice Marshall on the Court, it probably would have taken a white male court a good deal longer to appreciate the problems presented by the treatment of blacks in this country over the years. Certainly the presence of one, now two women on the Court helped the Court to understand the dilemmas raised by the abortion issue and other problems of women.
So diversity is very important. It's not the sole criterion any more than innate ability is the sole criterion. But it's an important factor.
Q: But isn't it reasonable to assume they will pick a liberal, so-called?
MR. CUTLER: He will -- I imagine -- I'm predicting now -- I imagine he will pick someone who generally reflects his sense of political and moral values. Every president does that.
One possible example I can give you is, as you probably know, I supported President Reagan's appointment of Judge Bork for the Supreme Court. I would not support or recommend Judge Bork to President Clinton. I felt that President Reagan, given his views, that Judge Bork would be an appropriate choice. But every president will pick people who he believes agree generally with him about the values of the country.
Q: Going back to David's question about an incumbent member of Congress. Has your office done research, prepared some kind of paper or an opinion about the process for choosing an incumbent member of Congress? Is this something you've been looking at?
MR. CUTLER: Well, there are -- the issue, the Emoluments Clause issue has arisen a number of times. And that is a matter of which we are studying, of course. Other issues are essentially political issues relating to the functions of the incumbent senator or congressman.
Q: Well does the Hugo Black model serve as a precedent for someone sitting in the Senate today?
MR. CUTLER: Well, he's one of seven senators, I think, who have actually been appointed to the Court.
Q: Did you just happen to know that fact --
MR. CUTLER: I have a little memo here. (Laughter.)
Q: and stay in the Senate during their -- prior to their confirmation?
MR. CUTLER: Well, because he was Hugo Black and a Senator, he was confirmed, I think, within a week of his nomination. So he was in the Senate approximately a week.
Q: What about the precedent of someone staying in the Senate after nomination, prior to confirmation, for an extended period of time?
MR. CUTLER: That was true not of a senator, it was true of Judge Mikva, a congressman. There were several months between his nomination and his confirmation, and he served as an active member of Congress during that period.
Q: Do you think it could be arranged so that there would be a several-month period between nomination and confirmation?
MR. CUTLER: Well, there's a minimum of eight weeks, actually, as I understand it -- under Senator Biden's rules and Judiciary Committee rules, between the time of the nomination and the beginning of the hearing, so that might be 10, 12 weeks between nomination and confirmation.
Q: In comparison to the last nomination process, would you expect this to go faster, slower, about the same?
MR. CUTLER: My guess is, it would go faster -- considerably faster. But that doesn't mean tomorrow.
Q: You were talking about the criteria a second ago. There's been quite a bit of speculation that the President could not appoint anyone from Arkansas, for example, right now because of political fallout over Whitewater. Is that accurate speculation?
MR. CUTLER: I would not exclude an appointment from Arkansas. There are very qualified judges in Arkansas. Some of them happen to be conservative. Justice Blackmun himself was from the A Circuit, which is Arkansas Circuit. So it is a possibility and would not necessarily be ruled out.
Q: Would there be a political consideration there, however? Would there be any political consideration there? Would that be a problem?
MR. CUTLER: You mean, the fact that if it were an intimate of his, a political intimate of his, clearly that might be a
problem. But there are judges who are not political intimates of his.
Q: for a nominee to stay in Congress even after being confirmed by the Senate?
MR. CUTLER: I think it would be legally possible, yes. Whether -- how politically possible it is, I wouldn't know.
Q: Which oath of office would become the operant?
MR. CUTLER: The operative things after confirmation are, first, the commission, the signing of the commission, and then the taking of the oath. And you'd have to do both before you actually sat on the Court.
Q: So you could remain in Congress until you actually took that second oath?
MR. CUTLER: From a legal point of view.
Q: Has that ever happened, according to --
MR. CUTLER: I don't honestly know. After confirmation.
Q: How are we to read all this enormous culminary research into the permutations of -- members of Congress? This didn't take place for the last --
MR. CUTLER: Well -- try and raise any speculation on your side, because it is not in the slightest sense true that this is a decided proposition. It is certainly the case that Senator Mitchell is one of the people, and we are doing the research. But we are doing research on a number of other people.
Q: Can you tell us what the universe is -- how many people are you doing research on?
MR. CUTLER: I wouldn't want to be precise, but it's -- counting the ones we've already done and the ones we may do, it's going to be a considerable number, probably reach double digits -- possibly well into double digits.
Q: Ten or 12, or --
MR. CUTLER: More or less.
Q: Mr. Cutler, if you have any names to give us -- (laughter). Justice Blackmun told the President back at Renaissance Weekend this would be his last term. Why don't you have a nominee ready to be rolling?
MR. CUTLER: Well, first of all, I don't know exactly when -- Justice Blackmun spoke to the President. But for one thing, Justice Blackmun never indicated until yesterday precisely when he would be ready to retire. He could have made this announcement two months from now. There have been rumors that he was thinking the matter over. Potential new law clerks for next year were encouraged to apply. Justice Brennan, his great friend, has been saying, I never should have left the Court. There were other reasons why we could not be certain that this was about to happen.
Q: Is this a true search in the sense of not really knowing who the one and two likely candidates are? We've gone through a whole series of these in the last decade where it is routinely described to us as a true search -- everyone's getting a look at; we're researching a dozen, 15, 700, 112. And then when you get down to the appointment there were two or three people. Do you really think that there are more than two or three likely possibilities at this point?
MR. CUTLER: Yes, I do. I really do. And I think it has to be a true search. Because even if you incline to one person at the beginning for various reasons, you may find some problems relating to him personally or his position. And you may find that other people who you hadn't taken too seriously in the beginning have credentials that really must be considered.
Q: Is the President inclined to one or two people at the beginning?
MR. CUTLER: Not to my knowledge.
Q: Are you doing all this research on a sitting member of Congress without having -- inquire as to whether that person wants to be considered?
MR. CUTLER: I have not made the inquiry. He has spoken to a number of you.
Q: Has someone made the inquiry on behalf of the President?
MR. CUTLER: Should it go much further, I think you can assume there would be some contact made, yes.
Q: I wanted to say, since one of the Justices who was appointed had a lot of lobbying done in their behalf -- by husbands and professors and so forth, how effective is that? And should somebody who wants to get on the Court start -- (laughter) -- up and down the East Coast?
MR. CUTLER: Do you have a niece or a nephew?
Q: Sure. (Laughter.)
MR. CUTLER: No, I really don't think that that's much --
Q: Just to go back to the Emoluments Clause thing for one moment, is there anything different about a judicial appointment in regard to that, that would make the solution that was used for Secretary Bentsen, or before that, for William Saxbe or the other cases, is it any different?
MR. CUTLER: From a legal point of view, I'd say no, there's no difference. Whether there would be an -- point of view --
Q: Is there anyone else you're doing research on right now? Is it just Mitchell for the moment?
MR. CUTLER: Only a year ago, we did a full book, as you know, on a number of people. They are still there -- there are others who have had an additional year of service on the bench or in some other capacity, who deserve being looked at. So we are doing research now on people we did not do it on at the time of the last appointment. And we have all of the people who were being considered at the time of the last appointment.
Q: There were about 40 people in that book the last time. It's been -- in any case -- a dozen or so --
MR. CUTLER: The finalists, the semifinalists, whatever you want to say.
Q: What kind of mission or charge has the President given you in terms of what he is seeking?
MR. CUTLER: We have not yet had a detailed discussion since I got here. I think he's been very clear --
Q: You didn't have a conversation this morning?
MR. CUTLER: This morning was mostly about Justice Blackmun. But since he has spoken many times about the qualities he would look for in a Supreme Court Justice -- ability, diversity, character and, as you know, in the past he has been attracted by people who have had some sort of political or other life experience, in addition to being a pure lawyer. Clearly one of the things that connected him to Ruth Ginsburg was how much she had done in the battle for women's rights.
Q: Mr. Cutler, -- last search using outside lawyers to vet and research prospective candidates. Do you plan to use outside lawyers to do --
MR. CUTLER: I believe we do. Yes, we will continue the same process as in the past. There's a limited staff right here and in the Justice Department. This is something lawyers like to do. All they're dealing with, really, primarily, are the writings of judges -- university presidents.
Q: Writing abstracts, that sort of --
MR. CUTLER: Right -- quality of the writings.
Q: In the discussions between your office and Justice Blackmun on Monday, did the issues discussed include the date of his effective, the date his resignation would become effective?
MR. CUTLER: Joe, would like to speak on that?
MR. KLEIN: The actual date in terms of when it is to become effective, no.
Q: But did you -- to the point in the conversation that he was intending to make his announcement --
Q: Can you give us the time? Was that Monday?
MR. KLEIN: It wasn't -- tick-tock. It was -- (Laughter.)
Q: And so -- the idea of establishing September 25th as the final date that it would become effective was his idea alone?
MR KLEIN: We found that out this morning, unless he may have mentioned it late last night. But it was -- that was all his --
Q: Did he call the President personally or was he put through to the President yesterday while the President was out of town? How did that work?
MR. KLEIN: No, he talked to me. I was actually out of town with the President yesterday, and so I happened to communicate with the President and with Mr. Cutler. That's --
Q: He called you Monday or Tuesday?
MR. KLEIN: He called me Monday afternoon and the next thing I did was go to the finals of the NCAA. So I was otherwise
occupied. On Tuesday I had a chance to talk to the President, Mr. Cutler, Mr. McClarty. And that's when we arranged --
Q? He called you on Monday and you didn't tell anybody until Tuesday?
Q: Did you tell the President Monday night? In other words, in North Carolina?
MR. KLEIN: Yes, the President knew Monday night in North Carolina. And then on Tuesday -- on Tuesday, although, I have to tell you, there were other issues on his mind as well -- on Tuesday we then -- actually, the President decided that he would like to have Blackmun over here to say some words to appear on the schedule. That was the President's decision. Justice Blackmun did not ask to have that happen. And we had that set up, and that took place this morning. And I confirmed that with Justice Blackmun --
Q: You told the President Monday night --
Q: We're confused here. You told him at the basketball game?
Q: You told him or did Justice Blackmun tell him?
MR. KLEIN: No, I told -- I think, literally, I told the President at the game, but I think he had been told before by Bruce Lindsey, whom I had told. I think that's the exact tick-tock.F Joel Klein first told Mack McLarty, then he informed Bruce Lindsey. F
Q: But he knew about it? Mr. Cutler, are you aware that Secretary Babbitt says he's no longer interested in the position?
MR. CUTLER: I'm not aware of that, no.
Q: He just said that in San Francisco -- he's happy where he is and that at this point in his life he doesn't want to go to the Supreme Court. Now, does that means he's ruled out as --
MR. CUTLER: I wouldn't say so. I wouldn't say so.
Q: So he's still a candidate.
MR. CUTLER: He may not be a candidate in the sense of applying for the job, but he's one of the people who has been under consideration and I imagine would be looked at again.
Q: Are qualities of bringing together people as -- bringing the other Justices together into coalitions -- are they --
MR. CUTLER: I believe the President has said that in the past. He has described, for example, the qualities that Chief Justice Warren had -- being in the center of the Court and being able to achieve a consensus on something as important as Brown against Board of Education --. That's one of many good qualities that you would look --
Q: Mr. Cutler, if Babbitt's still under consideration, does that mean Cuomo is still under consideration?
MR. CUTLER: Well, I shouldn't talk about any -- I'd be better off just not talking about names --. I believe Mr. Cuomo is running for Governor, as you know.
Q: With the news media so focused on Mitchell, do you feel that there's -- or is there any concern that you're being boxed into him?
MR. CUTLER: I really don't think so.
Q: effort today to say that the door is open to everyone, you're now -- the list is up to 10 to 12, that you want to keep that door open for a couple of weeks until you get through this --
MR. CUTLER: If you were doing it, you would make a careful evaluation of everyone involved. This is -- it is not an open and shut gate.
Q: Also, to what degree is Mrs. Clinton involved?
MR. CUTLER: I have heard nothing about Mrs. Clinton, except as a friend of the Blackmuns, she was of course present this morning.
Q: Is that your reason -- candidates who don't -- who haven't through their public writing or statements supported Roe versus Wade would be considered?
MR. CUTLER: There are no criteria that I'm aware of that go to particular issues. There are criteria relating to character, temperament, ability, diversity, et cetera.
Q: So when the President said during the campaign that that would be a criteria, it no longer is because he's picked one justice already or --
MR. CUTLER: No. There is no single issue on which, as far as I know, anyway --
Q: Do you have a time frame?
MR. CUTLER: A matter of weeks.
END 4:42 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 https://www.presidency.ucsb.edu/node/269567