All Too Human: A Political Education (25 page)

It's a small, select club, a peerage, the few men alive at any one time who have served as president. What unites them, ultimately, overwhelms partisan differences or even the bitter memories of past political battles. Only they know what it's like to be president — to order troops into battle; to hate the press; to sacrifice privacy in return for power; to face the nation from the West Front of the Capitol and swear to defend the Constitution against all foes, foreign and domestic, so help you, God; to sit alone in the Oval Office late at night and contemplate the imperfect choices that are the stuff of history. Just that week, I had watched Clinton make a condolence call to Richard Nixon after his wife's death. “Nixon's so awkward” was Clinton's only comment; but it sounded less like a judgment than a wish — that somehow, someday, his fellow president would find some inner peace.

Presidents scrutinize each other across the ages as well. Not only do the White House walls have ears, they're packed with presidential eyes. Everywhere you turn, another president is staring down in silent judgment. Thomas Jefferson overseeing the cabinet table, the Roosevelts in a room of their own, John Kennedy brooding in brownish gray by the Red Room. A marble bust of George Washington stood guard on a pedestal outside the ceremonial door to the Oval Office; inside, a tiny bronze of Lincoln watched Clinton work from a small alcove carved into the wall.

Clinton returned their gaze by reading their histories. A new biography was always in his leather satchel or in a stack on the table behind his desk. A whole wall of his study was devoted to the lives of the presidents. At times it seemed as if his predecessors were the only people who could understand him. He railed at the scandal mongers in the press with Jefferson; sympathized with Wilson, whose body broke under the burdens of the office; envied Lincoln his enemies, knowing that it takes a moral challenge to create a memorable presidency. JFK inspired intense jealousy. “The press always covered up for him,” Clinton said. Ike's daily rounds of golf just made him laugh. “George,” he told me, “if I had won World War Two, I'd be able to play golf in the middle of the week too.”

Later in the term, Clinton did learn to relax like Ike. But immediately after the Bush call, he became nervous. Tony Lake entered the Oval to report that twenty-three out of twenty-four missiles had cleared the ship cleanly. But we wouldn't know where they had landed for at least an hour. The president went upstairs to shower and change. He was scheduled to speak to the nation around seven.

At 6:20, he was back on the phone, this time to me. “What's going on?” he asked. “I can't go on without confirmation.” I relayed the president's anxiety to Lake, who checked with Powell at the Pentagon. We'll know when we know, Powell said. Lake dryly reminded Powell that “the president's not into existentialism. He can't go on without confirmation.” Powell knew that too, but there was nothing he could do. So Tony returned to my office and told the president that we would have to be flexible on the timing of the speech. “I think this is a sign we failed” was Clinton's superstitious reply.

Although our intelligence sources wouldn't confirm the attack, the news was starting to break all around the world. CNN went live from Baghdad and Bethesda, with Wolf Blitzer broadcasting over a cell phone in his car as he drove to the White House from his home in the Maryland suburbs. A flashing red dot superimposed on a map of the beltway tracked Wolf's progress. “Pretty pitiful visual,” quipped the vice president, who had come to my office to watch the coverage and wait for Clinton with Tony and me. Soon enough the talking blip was replaced by talking heads. In a case study of preemptive punditry, CNN's
Capitol Gang
assessed the political impact of Clinton's military strike before we even knew where the missiles had landed.

But that was somehow appropriate, because CNN served as the president's intelligence agency that night: David Gergen got word from CNN's president, Tom Johnson, that several missiles had hit the target, which General Powell was then able to confirm from official sources. The president delivered his speech, and his first military attack was a qualified success — small, self-contained, ultimately inconclusive, but still a short-term victory. Relieved at the outcome, the president stood by Betty Currie's desk before heading home and told me that he had just had a “great” talk with Colin Powell. “He said our process was great. All of the options were properly explored.”

A welcome coda. Someone who'd been there before had given us his seal of approval. But I detected more than gratitude and pride in Clinton's eye as he recounted the conversation. He was looking ahead. By telling me of Powell's praise, Clinton was also taking out a kind of insurance policy. Only a few months into our first term, what remained of the old Georgetown salons were already buzzing with the rumor that the chairman of the Joint Chiefs could be a president on horseback like Washington, Grant, and Eisenhower. The president and I understood without saying that every Clinton decision endorsed by Powell was another potential campaign issue denied. The general might one day enter the club of presidents. If and when that happened, Clinton would welcome him with open arms. But not yet, not without a fight.

Me neither. I made a note of the call.

HAMLET ON THE HUDSON

“I can't believe you've descended to this level of groveling exploitation.”

Mario Cuomo's words look harsher now than they sounded then — the morning of March 30, 1993. Gene Sperling and I were standing over my speakerphone, but for all Cuomo knew we were on our knees. The two of us were begging him to take a seat on the Supreme Court, and he seemed to be loving every minute of it.

Earlier that morning, I had drafted talking points for the call, all the reasons Cuomo had to take the Court:

•This will be the fulfillment of your career.

•You could read and write on the big issues.

•No other job leaves a longer legacy.

•Look at history: Frankfurter, Holmes, Brandeis.

•One hundred years from now your words will still be changing people's lives and protecting their rights.

•You've been training for this all your life.

Gene and I were trying to convince Cuomo that joining the Supreme Court was both his destiny and his duty; that he owed it to himself, his president, his country — and to us. Although Cuomo's regular reprises of Hamlet were exasperating, he was still our hero. The possibility of having Clinton in the White House and Cuomo on the Court was too good to be true. From the day Justice Byron White had announced his retirement two weeks earlier, Gene and I had done everything we could to make it happen.

That morning, Cuomo was still ducking the president. Clinton had called him the day before, but Cuomo's secretary didn't put the call through, saying that the governor was in the middle of budget negotiations and couldn't be disturbed.
Yeah. Cuomo didn't take the call because he couldn't decide what to do — again
.

Clinton was ready to appoint Cuomo, assuming (as we did) that the background check didn't reveal anything disqualifying. He was the only person Clinton had publicly cited as a possible Supreme Court nominee, and Clinton's criteria — “A fine mind, good judgment, wide experience in the law and in the problems of real people, and someone with a big heart” — had been enunciated with Cuomo in mind.

But Clinton hated how Cuomo always made everything so difficult. Despite Cuomo's rousing nomination speech, despite the fact that Clinton had appointed Cuomo's son Andrew to a top administration post, the two of them were still an uncomfortable couple. Cuomo thought Clinton should consult him more and be more enthusiastic about Cuomo and his causes. Clinton thought Cuomo should defer to him a bit more; after all, he was president. Seeing them interact was like watching porcupines mate.

Andrew also wanted his father to take the Supreme Court — for all the same reasons we did, plus one more. A tough-minded political pro who'd managed his father's previous campaigns, Andrew knew that getting Cuomo reelected to a fourth term as governor the next November would be an uphill fight. Better to leave the voters begging for more, and what could be a better exit strategy than accepting a seat on the Court? Like Earl Warren before him, Cuomo would be making the historic switch from big-state governor to justice of the United States.

But the father didn't share his son's ambition or foresight. On Thursday, April 1, Clinton finally reached Cuomo from
Air Force One
, and Cuomo told him that he was leaning against being considered but would think about it. Although Clinton's patience was threadbare, he let the matter rest while he went on to the Yeltsin summit. By the next week, however, various versions of their pas de deux started to leak; the clock was running out. On April 7, I called Andrew. “We have to pull the trigger one way or another,” I told him. “It can't go on like this. It's not fair to the president. We need an answer.”

Andrew called his father, and he told me later that they spoke for two and a half hours. We needed a decision by day's end, and Mario finally told Andrew: “If you want me to, I'll call Clinton and take it.” But an hour later, the governor faxed the president a letter saying that his duty to New York outweighed his desire to be on the Supreme Court. Another chapter in the saga of Clinton and Cuomo had drawn to a close.

The president, however, still had to fill a vacancy on the Court.

Inside the White House, we compiled semipublic lists of the most credible candidates, but everyone had a private dream pick. Clinton's favorite was Richard Arnold, the scholarly friend he had passed over for attorney general. Harvard Law's Laurence Tribe was the heartthrob of liberal lawyers who wanted someone with a pen as sharp as that of Justice Scalia. We brainstormed “outside the box” by tossing around the idea of appointing a brilliant political philosopher instead of a practicing attorney. (The Constitution does not require a law degree for service on the Supreme Court.) Professor Stephen Carter of Yale fit that bill, as did Harvard's Michael Sandel. Both had the added bonus of being younger than Clarence Thomas; they could write opinions for forty years. The wildest fantasy hit closest to home:
Wouldn't Hillary look great in a black robe?

But the “advise and consent” clause of the Constitution prevented the selection process from becoming a mere exercise in high-concept politics. Clinton's choice had to be ratified by the Senate, where Republicans hadn't forgotten the rejection of Robert Bork, and Democrats were reeling from their recent encounters with Zoe Baird, Kimba Wood, and Lani Guinier. Sexy was good, but safe was better. We simply couldn't afford another failed nomination.

April and May passed without a decision. The president was preoccupied and unsatisfied with the candidates presented to him. He wanted a “big, bold” choice and kept asking for new names. By June, we were up against a wall. If the president didn't nominate someone very soon, there wouldn't be time for confirmation hearings and a vote before the Senate recess, and we'd run the risk of starting the October term of the Court one justice short. June 15 was the new internal deadline.

The final candidates fell into three categories. A “politician” — someone who could use formidable people skills to forge a progressive coalition on the Court. Interior Secretary Bruce Babbitt, the former Arizona governor and presidential candidate, was at the top of this pile. A “brain” — someone with a superior legal mind and literary bent who could match Scalia and Rehnquist brain cell for brain cell, brief for brief. Federal appeals court judge Stephen Breyer, a former top staffer to Senator Edward Kennedy, was the favorite here. Or a “first” — someone whose personal story would make a powerful statement, like Washington attorney David Tatel, who would be the first blind man on the Court, or Judge Jose Cabranes, the first Hispanic. But the demand for diversity was less fashionable in June than it had been in December, and there was no obvious favorite. Judge Ruth Bader Ginsburg emerged near the end of the process. Like Breyer, she would be the first Jewish justice since Abe Fortas, and the first woman to be appointed by a Democrat. More important, she was a pioneer in the legal fight for women's rights — a female Thurgood Marshall.

On Friday night, June 11, a group of us met in the Oval to review the final bidding. Babbitt and Breyer were the front-runners, but both had drawbacks. The interior secretary's aggressive attempts to reform grazing fees and mineral rights had enraged many Senate Republicans and more than a few Democrats, who had accused him of waging a “war on the West.” Even Babbitt's home-state Democratic senator, Dennis Deconcini, called Clinton to advise against Babbitt. Choosing the interior secretary would also create another high-level vacancy, an unwelcome prospect given our overloaded appointment process.

Babbitt could probably have prevailed in the Senate, but the confirmation battle would have been bloody. Nominating Breyer in June of 1993 was politically impossible. He was well qualified, and he had the backing of Senator Kennedy and key Republicans like Orrin Hatch, but he also had a “nanny problem.” Like Baird, he hadn't paid social security taxes for his housekeeper, and the fact that he hadn't fully reimbursed the IRS until after Justice White announced his retirement would be difficult to explain to a skeptical Senate committee.

Some of Breyer's supporters made the perverse argument that we should take a stand on Breyer precisely because he was a white man with a nanny problem. He's the best-qualified candidate, they argued, so by fighting for him we'll stick it to the diversity police and the good-government “goo-goos” in a single blow.
Yeah, that'll show 'em, you morons. Let's beat our bloody head against a brick wall one more time just to prove to the world we can take it
. The argument I made in the Oval, along with Howard Paster and Vince Foster, was slightly more restrained, and it persuaded the president. “I agree with them,” Clinton said. “We don't need another gang-that-couldn't-shoot-straight story.”

That left Ruth Ginsburg, but the president hadn't interviewed her yet. She was invited for a meeting in the White House residence on Sunday morning. The seat was hers to lose.