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Press Briefing by White House Counsel Lloyd Cutler and Deputy Counsel Joel Klein

May 13, 1994

The Briefing Room

6:37 P.M. EDT

MR. CUTLER: I'm Lloyd Cutler, and let me introduce the President's Deputy Counsel, Joel Klein. The only things I wanted to say at the very beginning were that in the first briefing, I think on April the 6th when we were asked how long the process would take, we said a matter of weeks. One of you asked, not months, and I said, yes, not months. In fact, it turned out to be 37 days, which is just over five weeks, and I hope you'll agree, not months.

And the second is that there will be the usual Rose Garden announcement and ceremony with Judge Breyer's family sometime on Monday, but I think the exact details haven't been set. And Judge Breyer's wife is at present in England and will be back over the weekend.

Q: What were the qualities that you think were determinative in this -- and in deciding not to choose a political person, which was certainly a very different option?

MR. CUTLER: As the President said -- oh, you could -- the best way to put it, I think, would be, on a one-to-10 scale, all three of these final three I think are, by anyone's standards, 10s from the standpoint of judicial excellence and quality and the standpoint of having political experience of one kind or another. And the question essentially came down to which would be the best of the three, all three being very high-quality people.

And in the course of the last couple of weeks as we settled primarily on those three, problems developed with two of the three. And the one who had the fewest problems but had the same qualities of excellence as any of the others turned out to be Judge Breyer.

In the case of Judge Arnold, there is an issue of health and how long he would be able to serve on the Court -- an issue that may be cleared up in the course of his treatment fairly soon.

In the case of Secretary Babbitt, the President ultimately concluded, qualified as Secretary Babbitt would be for the Court, that he needed him more in the administration at Interior, which is obviously one of the most political sensitive posts there is.

Q: He didn't know he was in the Department of the Interior when he began considering him, or what?

MR. CUTLER: Of course, he did. And he weighed the problems of what would happen if he took Secretary Babbitt out and whether it was a net plus or a net minus, or whether at least the gains of putting him on the Court would be offset by his loss to the Cabinet.

Q: May I follow, sir? Warren Hatch just said, just before you came out here, that he thought that his opposition had something to do with it. Did it have anything to do with it at all?

MR. CUTLER: Well, Senator Hatch is entitled to that view, but any Supreme Court appointment, especially these days, is going to run into some opposition. Every one of these candidates will have somebody with some particular criticism or interest to assert against him. And it was simply a question of whether it was better to give up Secretary Babbitt in the Cabinet or to keep him right there.

Q: Did you or Mr. Klein, who is, as we all know, a Supreme Court expert, perhaps give us an example of the kind of opinion that Judge Breyer has written that has that human touch that the President has talked about so much? I've tried to talk to lawyers who could direct me to one; I couldn't find one. Can you help?

MR. KLEIN: Sure, you can look at his opinion on the exclusion of American citizens from Cuba, and his feelings about the right of the individual. If you look at some of his opinions in the free speech area, his understanding of the mix of debate and the importance of it.

And one thing I would say about Steve Breyer, which I think is important, even though it sounds technical, if you look at the work that Steve Breyer has done in the important areas of economic policy which directly affect the lives of all Americans, one doesn't have to be passionate in one's vocabulary to be passionate about one's work. And the best opinions, in my view, of any Court of Appeals judge in this area were written by Judge Breyer.

Q: On regulatory law?

MR. KLEIN: On regulatory law, on antitrust law. The notion that these opinions directly affect the way our economy grows and the way our people's lives are affected. And somehow the notion that that is dispassionate, Rita, I just simply reject that.

Q: Mr. Cutler, Boston is only an hour away. When did the President make his final decision and why couldn't Judge Breyer be here?

MR. CUTLER: He made his final decision in the middle of the afternoon today.

Q: Mr. Cutler, could you walk us through a little bit the process? I mean, again, as everyone knows, it was considered to be three and then it was two and then Breyer seemed to be coming from behind. Was it really right down to the wire that President -- or, as you said, did these problems as they came along become clear?

MR. CUTLER: All three of the final three were in consideration for the last several days and, in the course of that examination, Judge Arnold -- we have known for some time of Judge Arnold's illness -- but as we made a more intensive study of his actual condition, the treatment he's undergoing, the prognosis of his doctors, it became more and more difficult to project with any real sense of confidence that by appointing Judge Arnold at this particular moment, that one would be able to name a justice who could serve in the span of 15 to 20 years as Justice Blackmun had done. And it's very important in considering a justice.

You'll notice all three we were considering are in their middle 50s. It's very important to consider the time span. You notice that President Bush appointed people in their 40s who will have an influence on this Court for a very, very long time to come. It may well be, as the President said, that in the future, as the result of the treatment that Justice Arnold will be undergoing, that his prognosis will improve substantially. And he's still quite a young man. And one can come back to that.

In the case of Secretary Babbitt, it was a matter of weighing the plus of putting him on the Court and increasing the diversification of the Court by having a seasoned politician on the Court -- something it has had throughout most of its history -- against the loss to the Cabinet. It was finally decided that Judge Breyer, who has at least as strong capabilities as a justice, one could argue -- I would guess myself that Judge Breyer and Judge Arnold, if asked, would each rate the other the best appellate judge in the country today.

And it was a matter of weighing those qualities and Judge Breyer's own political experience, his sense of colleagueship, his ability to form consensuses both on the Court of Appeals, of which he is now the chief judge, and on the Sentencing Commission where he was a leader in formulating most of the compromises that were reached by the Commission. And finally, the President concluded that Breyer was the right pick out of these three at this time.

Q: What happened to Cabranes and Kearse? Where did they fall in the process?

MR. CUTLER: They were very much in consideration all the way through. Judge Cabranes -- I should say this, I think, off the record -- Judge Cabranes -- no, I'm serious, on background.

Q: You can't -- the cameras are on.

MR. CUTLER: Judge Cabranes has been a candidate for the Second Circuit. He is a district judge at this time. He has written relatively few appellate opinions in which you deal with the stuff of agonizing constitutional questions of the kind that reach the Supreme Court. In recent months, actually before Justice Blackmun resigned, it had been decided to recommend Judge Cabranes for appointment to the Second Circuit Court of Appeals, where he will have an opportunity to acquire that kind of experience.

We have not announced that because it has been customary to await formal announcement of the intention to nominate someone until the American Bar Association and the FBI have both concluded their reviews. That is now in process. Is it completed yet? It is still in process. So Judge Cabranes has not been announced up to this point for his promotion.

Q: that Judge Arnold was not in remission -- is no longer in remission and was being treated again? Is that pretty accurate?

MR. CUTLER: I think we have know that pretty much throughout this process, within a very short time after the Blackmun resignation.

Q: And do you know whether it's chemotherapy --

MR. CUTLER: We have been consulting various doctors. I don't know how much we're at liberty to say about his treatment. But it is a course of treatment recommended by a variety of doctors, and what the mixes of it are I don't know.

Q: Can you answer a question about Amalya Kearse?

Q: Amalya Kearse, she was supposed to be one of the finalists as well. Why aren't --

MR. CUTLER: We strongly considered Judge Kearse. She is also one of the very best of the Court of Appeals judges in the country. The President, in the end, decided that the one who had the best chance of demonstrating the qualities of colleagueship and consensus building on the Supreme Court at this point would be Judge Breyer. But that is no denigration of Judge Kearse in any way.

Q: Can you give us some examples of some of the specific things the President has asked for in the last week in terms of additional information about the candidates?

MR. CUTLER: Well, we have been asked to review and, of course, review opinions, speeches. We have been asked in the case of Judge Arnold to review the opinions of his doctors. We have taken soundings, as one might imagine, on the question of if you put Secretary Babbitt on the Court, how would he be replaced and what would the problems of replacement be. Those are the kinds of questions we have been --

Q: Anything specific in the last two or three days, say, within those general categories?

MR. CUTLER: In the last two or three days, the most specific was further, more intensive study of Judge Arnold's medical condition.

Q? Who else has he consulted with outside of the White House on this? Who has he used as a sounding board outside of the White House?

MR. CUTLER: I don't know to whom the President has talked. We talked to lawyers. We talked to law professors. We talked to people in the community. We do the normal kind vetting of candidates for the judiciary that is regularly done. And, of course, in the case of the Supreme Court it is far more intensive. The President consults political leaders. He consults friends, law professors, all sorts of people. The President has a very busy telephone and visiting schedule, as you know. Do you want to add?

MR. KLEIN: Yes -- we've had extended discussions with the Attorney General and her staff in terms of the selection process at every step of the way.

Q: Did the First Lady weigh in in the working groups at all or informally on this?

MR. CUTLER: I have no idea about that. But the First Lady was not in any meetings related to the selection of the Supreme Court justice.

Q: When were Mr. Babbitt and Judge Arnold informed that they were not going to be chosen? And did the President speak to them? And then, when did he speak to Judge Breyer?

MR. CUTLER: All three were this afternoon.

Q? By the President?

MR. CUTLER: By the President.

Q? Mr. Cutler, this Court has been fairly conservative in the number of cases it's taken. Do you expect with Judge Breyer to see a more activist Court, a more conservative Court, or in the middle? What do you foresee? How will this play out with him on the Court?

MR. CUTLER: Joel, as our resident Supreme Court expert, I'll let you answer that question, but I think it's almost impossible to predict at this point.

MR. KLEIN: I would say, I think the quality that he will bring will make the Court a more exciting place. He's a person that is so -- if you know him and you talk to him about ideas that affect people, there's an excitement about it. And I just think that's going to lend measurably to the Court, and I think that will affect the Court's case load, not just the order, the numbers of cases, but the interesting range of issues that the Court takes.

Q: You expect the case load to go up, then, is that correct?

MR. KLEIN: As Mr. Cutler says, that's a hard thing to predict. I expect that this appointment will bring some excitement to the Court, and I think the effect of that will be to make the Court more interested in reaching out and bringing more issues to the Court.

MR. CUTLER: I think there is also an area in which Judge Breyer's expertise, I think will be of assistance to the Court and may, perhaps, add to the number of cases, and that is the interpretation of statutes.

One of the Justices whom we had consulted about a former colleague of his involving an appointment to some lower court, just volunteered the comment that it would be a very good thing to have someone appointed to the Supreme Court who had legislative experience, who really understood the pith and the give and play of how statutes get enacted and what is meant by trying to figure out what congressional intent is perhaps on an issue that nobody in Congress had ever thought of in the first place. Judge Breyer has that experience because of his many years of service as the Chief Counsel of the Judiciary Committee.

Q: Did the decision move or the selection move from one candidate to the next, as has been portrayed? Somebody was quoted in the New York Times that it was 95 percent Babbitt -- I think it was on Wednesday -- and then Babbitt dropped out and Arnold became a --

MR. CUTLER: All of you are very good at asking questions. You have several hundred people here in the White House you can ask questions to, most of whom are not informed as to who's being considered at any particular point. All I can tell you is that these three are among the larger group who are under consideration. They were the last three who were under consideration, and all three were under consideration right up to today.

Q: The last time around, Judge Breyer had a little problem with "Nannygate," and I understand he already paid up -- it wasn't a major thing. Will that -- anything?

MR. CUTLER: Not only is everything paid up and not only has congress now resolved this difficult problem, but Judge Breyer and his family, in the interim since a year or so ago, received a ruling from the Internal Revenue Service that, for the period in which they had hired this -- it was cleaning woman, actually, who also worked as a day worker, who was working for other families as well, that she was not an employee and that they owed nothing for that period, and a refund of that payment has been made.

Q: Some of the President's aides said last year when the President choose not to pick Judge Breyer, that there was a lack of chemistry between the two of them. Was that a factor this time around and did you discuss that?

MR. CUTLER: Well, once again, it's the President's -- when you say the President's aides, the President has over 300 aides -- remember that when Judge Breyer came down here for that interview, that it was only that very day he had had a tube removed from his body which had been inserted so he could survive his very serious bicycle accident in which a car had run into his bicycle. And a tube had been inserted in his body so that he could breathe. He was, at the very least, not at his best that day, but even so, he made quite an impression on the President and his behavior and his record from that time to this has certainly impressed the President.

Q: Prior to calling him today, did the President have discussions with him leading up to his decision?

MR. CUTLER: I don't believe they have met, at least for any extended discussions between the time of that original meeting, and I don't think there's been a subsequent meeting, there may have been. But there was nothing until the telephone conversation today.

Q: What have the staff contacts between your office and Judge Breyer and Judge Arnold been in the last, say, month?

MR. CUTLER: In the last month the staff contacts with Judge Arnold have related almost entirely to his health and some of the normal vetting process that we go through with everyone. And Judge Arnold, remember, had not previously been considered for a Supreme Court -- well, at least, I don't think he was under serious -- he had not been vetted in the last --

Q: Are you saying that Breyer was not moved up in the pecking order within last week or 10 days -- that he had been right at the top?

MR. CUTLER: He had been in the pecking -- what you call the "pecking order," which originally was, say, 15 people and finally came down to three. He was there all the time. He was never removed in any sense.

Q: In that triumvirate all the time?

MR. CUTLER: The triumvirate was originally 15 or so, and it shrunk and it shrunk and it shrunk to three and he was always one of the three.

Q: What do you say to people who might get the impression that the way you explain why Babbitt wasn't selected that this is a vote of no confidence in Bill Richardson? (Laughter.)

MR. CUTLER: All I can tell you is the President has a very high opinion of Bill Richardson, who is also performing a very valuable role as the Deputy whip.

Q: But you, yourself, mentioned there were -- that the President saw some problems in replacing Babbitt. What were those problems?

MR. CUTLER: If you replace Secretary Babbitt with Gifford Pinchot you would have problems. It is almost impossible to propose anyone for the Department of the Interior except a man from Mars who would not present some problems to one of the groups that feels its own life and economy is regulated by the Department of the Interior.

Q: If he was so irreplaceable, why was he in the order in the first place, then?

MR. CUTLER: All I can tell you is, is desirable qualities made him very attractive for the Supreme Court, and he remained in consideration for the Supreme Court until the President concluded the loss of Secretary Babbitt in the Cabinet would offset the gain he would get by putting him on the Court.

You asked whether we had been in touch with Judge Breyer.

Q: I was just wondering when the last time anyone had been in touch with him.

MR. CUTLER: I don't think any of us have been in touch with Judge Breyer for the last several weeks of this process. Judge Breyer was thoroughly vetted only a year or 14 months ago.

Q: So the only way that he would have known that he was under consideration is through press accounts?

MR. CUTLER: No, I had conversations with Judge Breyer and his family at the very beginning of this process, particularly with reference to what you call the "nanny" or the "day worker" problem, which has been satisfactorily resolved.

Q: But since those conversations, which were weeks ago, he would have no indication, have gotten no indication from the White House that as the list shrunk --

MR. CUTLER: No, because we felt we knew everything we needed to know about Judge Breyer.

Q: But I'm talking about from his point of view and his knowledge about whether --

MR. CUTLER: No, he had no --

Q: So when he got the call from the President today, that was the first contact since you had contact with him --

MR. CUTLER: That's right. Plus, he read the papers and learned from you that he was --

Q: But you said those were untrustworthy, so -- (Laughter.)

Q: I think you said that Breyer's behavior and record since he met with the President a year ago had impressed the President. What did you mean by that?

MR. CUTLER: He had praised the appointment of Judge Ginsburg to the Court. He had returned to his duties. He continued to perform excellently. He cleared up his nanny problem. He did not organize any kind of campaign to be appointed to the Court. He was very decent and proper judge about being considered last year and not being appointed.

MR. KLEIN: And I would just add to that, Eleanor, he actually came to Justice Ginsburg's swearing-in, came down from Boston, came there, was completely supportive, had private conversations with her, and has really been a class act.

Q: Mr. Cutler, the Congressional Hispanic Caucus urged the President in a letter to appoint an Hispanic. Has he made any particular outreach to them or other Hispanic leaders today?

MR. CUTLER: I think you'll find that in the appointments to the courts of appeals and the district courts there is quite a high number of members of the Hispanic community, and in due time there will almost certainly be a highly qualified Hispanic on the Supreme Court.

Q: But he has not made any calls that you know of to inform them of his decision --

MR. CUTLER: He has made many calls today after he had reached his decision; I just don't know the answer to that question. And I have spoken to Judge Cabranes, of course, myself.

Q: Did he today -- did he have you all in a meeting and say, okay, let's go with Judge Breyer, or did he call you up and say I've decided it's Judge Breyer? How did it work?

MR. CUTLER: There were a series of meetings of what you might call a moveable feast for quite a while, but in the end, yes, what's what happened. He called us in and told us what he had decided.

Q: When did he speak to Mr. Cabranes -- Judge Cabranes last time?

MR. CUTLER: This afternoon, after the decision was made.

Q: What time did he call you in and tell you that?

MR. CUTLER: Well, we were in or out, I'd say, four or five times in the course of the day. The last time around -- what, 4:00 p.m.?

MR. KLEIN: Four fifteen p.m., I think, was when the final decision --

Q: He came in and that's when he told you -- what were his words?

MR. CUTLER: I have to draw the line.

MR. KLEIN: These guys want to work here, let them apply.

MR. CUTLER: We don't quote the President on what the President says.

Q: Did you know earlier than that meeting that that's the direction he was leaning in earlier in the day, or was it still three candidates up until that meeting?

MR. CUTLER: It was three candidates, it has been three candidates for the last several days, and today we got down to one candidate. He made his decisions.

Q: There was considerable opposition on Capitol Hill to Bruce Babbitt from Republicans and others. There was some growing concern among women's groups about some of Judge Arnold's opinions. What about the instant analyses that this was the safe choice?

MR. CUTLER: You can develop conspiracy theory if you want, or disparagement of motives all you want. But the President gave his answer to each of those questions. In the case of Judge Arnold, it was unresolved issues as to his health, although we recognized there might have been some opposition to Judge Arnold. In the case of Secretary Babbitt, it was that the President finally concluded he could not lose the value of his services in the Cabinet, even though, again, there were people like Senator Hatch, who announced their longstanding opposition to Secretary Babbitt on any issue.

MR. GEARAN: I guess that was the last question.

Q: What about Legal Defense Fund? Have you made a decision -- (laughter.)

MR. CUTLER: Can't we just do the Supreme Court today? We have not made any decisions.

THE PRESS: Thank you.

END 7:04 P.M. EDT

William J. Clinton, Press Briefing by White House Counsel Lloyd Cutler and Deputy Counsel Joel Klein Online by Gerhard Peters and John T. Woolley, The American Presidency Project

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