Once the president has chosen, and the Senate has confirmed, and the black robe is hanging in the lockers just beyond the grand courtroom, all the judging is done by the justices of the Supreme Court.
For as long as they want.
But until then, it seems, almost everyone has a say on the qualifications of those who might sit at the mahogany bench. That includes the young lawyer just a month out of law school who 21 years ago sized up then-appeals court judge Stephen G. Breyer as a “rather cold fish” who was unlikely to be “a great Supreme Court justice.”
Gulp, says Ian Gershengorn, who is now the principal deputy solicitor general and whose job it is to represent the United States before Breyer and his eight colleagues.
“Everyone has regrets from his 20s,” Gershengorn said in a statement released by the Justice Department after his phone started ringing Friday afternoon.
That is when the Clinton Library released 229 pages of documents concerning President Bill Clinton’s nominations of Ruth Bader Ginsburg and Breyer in 1993 and 1994, respectively.
“Suffice to say,” Gershengorn continued, “I have the highest respect for Justice Breyer and believe he has proven to be a terrific justice. As Earl Weaver once said, ‘It is what you learn after you know it all that counts.’ ”
The Clinton documents, part of a systematic release of presidential papers, do more than put Gershengorn and his slightly more senior co-evaluator Tom Perrelli on the hot seat. (The two worked at the law firm Jenner & Block, and Perrelli seems to have been the wordsmith on the memo. After three years as an assistant attorney general in the Obama administration, Perrelli is back at the firm, and his response to the release of the memo was, “That shows why you shouldn’t have second-year associates evaluating Supreme Court nominees.”)
The papers provide an incomplete but intriguing look behind the Supreme Court nominating process — the fine-tooth combing of the potential nominees’ public and private lives, harsh and quick judgments on their qualifications, the care and feeding of senators who will consider the nominees, and the selling of the chosen ones to the public.
One memo says that 40 lawyers from six Washington law firms researched Ginsburg’s opinions from her time on the U.S. Court of Appeals for the District of Columbia Circuit, while 25 lawyers from three firms looked at Breyer’s work on the U.S. Court of Appeals for the 1st Circuit in Boston.
One summation from a deputy to Bernard Nussbaum, Clinton’s counsel, was that Breyer would be on “everybody’s” list of top five appellate judges in the country, while Ginsburg would probably make the top 10.
But Ginsburg had the intangibles, wrote Joel Klein, who went on to become New York City’s schools chancellor.
“I would think that Judge Ginsburg more closely meets the President’s articulated standards for the Supreme Court than does Judge Breyer,” Klein wrote. “Judge Ginsburg’s work has more of the humanity that the President highly values and fewer of the negative aspects that will cause concern among some constituencies.”
There’s nothing in the released papers that shows the reactions of Nussbaum or Clinton.
It’s important to remember that neither Ginsburg nor Breyer was Clinton’s first choice for the high court. He liked the idea of nominating a politician and had sounded out former New York governor Mario Cuomo, Education Secretary Richard Riley and Interior Secretary Bruce Babbitt.
“Many names were floated and leaked, mostly to appease various constituencies,” Clinton aide Douglas Band wrote in a memo summing up the two nominations.
Filling the first opening was a messy process that lasted nearly three months after Justice Byron White announced his impending resignation until Ginsburg was named in a Rose Garden ceremony. But Clinton bristled when asked about it.
“I have long since given up the thought that I could disabuse some of you of turning any substantive decision into anything but a political process,” Clinton said before calling an abrupt end to the questioning.
The documents make clear that in the week leading up to the nomination, it had become a two-judge race. Ginsburg told me in an interview last year that she thought Breyer would get the first nomination and that she would be in line for a second, which occurred not long after, when Justice Harry Blackmun left the court.
But a lunch with Breyer that Friday apparently left Clinton unconvinced; he interviewed Ginsburg on Sunday and offered her the job later that night.
Ginsburg has been candid about the campaign on her behalf organized by her husband, Martin, and the papers show some concern about that at the White House.
“Committee Republicans are looking for the letters that the President received on behalf of Ginsburg. They will not get same,” said notes from a meeting after Ginsburg was selected. “Rumor is that some abortion rights zealot in the White House advised Marty Ginsburg to start a campaign to overcome questions about her position on choice.”
Ginsburg is an abortion-rights supporter but had questioned the legal reasoning behind Roe v. Wade.
In the end, all of those judging Ginsburg and Breyer settled on a shorthand: Ginsburg was a moderate liberal, and Breyer was moderate to conservative. Ginsburg was unemotional in person but passionate in her opinions; Breyer’s reviewers shared “a sense of disquiet about the extreme detachment” in his opinions.
In another small-world twist, that memo was written by now-Solicitor General Donald B. Verrilli Jr., whose own work is graded by the Supreme Court.
The papers disclose how the White House monitors Senate reaction, especially among the members of the Judiciary Committee. Sen. Patrick J. Leahy (D-Vt.) “can be prickly if ignored, and he has been ignored,” said one memo.
Former senator Howard Metzenbaum (D-Ohio) “does not like Breyer because he is conservative on antitrust, and because Hatch/Dole like Breyer,” said the memo, referring to Republican Sens. Orrin Hatch (Utah) and Robert Dole (Kan.).
The documents contain extremely detailed information on the questions that Ginsburg could expect to receive from senators, even the Republicans.
In the end, though, that did not seem to matter much. Ginsburg basically declined to answer any detailed questions because, she said, the issues raised were likely to come before the court. It was a tactic deemed so successful that one memo describes compiling a video of her answers that Breyer might want to duplicate, and every nominee since Ginsburg has followed the advice.
By the time Breyer got the nod in 1994, concerns about him seemed to have eased, or perhaps liberal opponents gave up the fight to get a nominee more to their liking.
One memo describes lining up supporters either to write op-eds endorsing Breyer or to be on call to praise him to the media during his confirmation hearings.
Apparently, being sought out by the White House doesn’t carry the cachet one might think. At least it didn’t to Geoffrey Stone, the noted liberal constitutional law professor at the University of Chicago.
One memo described the effort to recruit “Jeff Stone.”
Stone “is not particularly interested in changing vacation plans in order to attend (or even watch on television) hearings which he says will be uneventful,” the note says.
“He thanks you for thinking of him, though.”