This was too much for Lloyd Cutler, the 76-year-old establishment lawyer brought in to create some order in the White House. “This just isn’t working,” he said, clearly exasperated. Clinton had to decide.
Clinton is the most maddening of decision makers, crossing signals, second-guessing himself, wanting it all. His decisions-like the one he made last week for the Supreme Court-often turn out well, but only after the most drawn-out machinations, which can be humiliating for those at the center of them. The long-term risk is that the waffling will undermine his authority.
In the end Clinton tends to shun the bolder options. When Woodrow Wilson picked Louis Brandeis for the high court in 1916, his choice was vilified by powerful interest groups and the organized bar, which attacked Brandeis as a dangerous “radical,” meaning that he was liberal and Jewish. Brandeis, of course, went on to be one of the greatest justices in history. Stephen Breyer, of the First Circuit Court of Appeals in Boston, is a Harvard Law School-trained federal judge, a respected scholar, and he shares the same religion as Brandeis, but there the similarities end. Breyer is a technocrat who specializes in regulatory law. A moderate pragmatist, Breyer is no crusader for “social justice.” Most of all, Breyer is safe. He is a friend of both Edward Kennedy, the leading liberal on the Senate Judiciary Committee, and Orrin Hatch, the leading conservative. His confirmation, a Senate Democratic staffer told The Washington Post, will be “deadly dull,” which is exactly what Bill Clinton wants.
Clinton, whose rhetoric is usually grander than his actions, once said he was looking for a justice with a “big heart.” Interior Secretary Babbitt looked like a potential Earl Warren, the late chief justice, who looked past legal niceties to ask, “But was it fair?” As a governor, presidential candidate and cabinet member, Babbitt has been willing to challenge conventional thinking and vested interests.
Along the way, however, Babbitt made some powerful enemies, including Western senators who didn’t like his reform efforts to cut back federal handouts to ranchers and miners. One of those lawmakers was Hatch of Utah, who was threatening to turn Babbitt’s confirmation hearings into a fight. Clinton knew the White House could win, but didn’t relish a squabble over a Supreme Court nomination just as health-care legislation was wending through Congress.
Still, Babbitt was the presumptive first choice. At midweek, an announcement was prepared; Babbitt was told to wait by the phone. Late Wednesday afternoon, White House chief of staff Mack McLarty found the president fretting upstairs in the residence. Moving Babbitt from Interior would create a “mess,” he said. House Chief Deputy Majority Whip Bill Richardson was ready to replace Babbitt at Interior, but Hispanic groups were angry. Though Richardson is Hispanic, they wanted a seat on the court, not some second-tier cabinet slot. The more Clinton thought about it, he said, the less he liked moving Babbitt.
At midnight, Babbitt went over to the White House to see Clinton. They talked until 3 a.m., when Babbitt graciously declared he was happy to stay at Interior. It was a second public jilting for Babbitt, who was passed over last year for the seat filled by Ruth Bader Ginsburg. Relentlessly cheerful, Babbitt released a statement saying he liked the outdoors better anyway, and was “going to Yellowstone.”
Thursday’s infatuation, Judge Arnold, had scores of federal judges lobbying for his appointment. But his Arkansas background was a liability in Congress, and reporters were asking how he made $500,000 trading futures in precious metals in the ’70s. (The trades were perfectly legal.) More worrisome, Arnold has lymphoma, a form of cancer, and Clinton doubtless feared that, despite his treatment, the judge’s health remained fragile.
So Breyer popped back to the top of the list on Friday. He had been there before. A year ago, his nomination to the court seemed secure-until the “CBS Evening News” led with a story that the Boston judge had failed to pay social-security taxes for his aging cleaning lady. The White House panicked and dumped Breyer A gracious loser, Breyer had come to Ginsburg’s swearing-in and paid up his back taxes. Still, as Clinton wavered last Friday, he said he was bothered that the “chemistry” had been “wrong” when the two men initially had lunch a year ago. Breyer had seemed a little chilly, not exactly the “big heart” Clinton was looking for. Chief of staff McLarty, desperate to close the deal, reminded the president that Breyer had broken his ribs and punctured his lung in a bicycle accident. The doctors had removed a tube that was assisting his breathing to allow him to travel to Washington; he had been so weak that he had rested in the White House Counsel’s Office before lunch. “None of us would have performed well under those circumstances,” pleaded McLarty. McLarty urged Clinton to look at the “tremendous support” Breyer enjoyed in the Senate.
Those were the magic words. After a half hour staring out his window as media deadlines approached, Clinton chose Breyer. Breyer, 55, could end up being a good, maybe even great, justice. A schmoozer (at least with other lawyers) and politically savvy, he could be the kind of consensus maker that Clinton said he was looking for. Breyer has a libertarian streak that could blossom on the court-making him a worthy successor to Brandeis. He could bring intellectual rigor as well as a New Democrat’s belief that government is a useful tool, if used judiciously. But that isn’t the main reason Bill Clinton picked him.
