The Nine [33]
As the week progressed, Klain started to have suspicions about the real purpose of the breakfast. He checked with some other former law clerks who sometimes joined him for breakfast with White, and he learned that none of them had been invited. Still, Klain told no one from the White House except his assistant about his appointment.
No breakfast was served. At 9:00 a.m. on March 19, White’s secretary ushered Klain into chambers, and the justice was seated at his big partner’s desk by the window. As usual with White, who was gruff and dour even before he turned seventy-five, there was little small talk.
White slid a sealed envelope across the table to Klain. “I’d like you to bring that back to your boss,” he said.
Klain nodded.
“And I have a copy for you if you would like to see it.”
The letter said White was resigning. Bill Clinton would have the first appointment to the Court by a Democrat since Lyndon Johnson named Thurgood Marshall in 1967.
Why now? Klain asked. The timing was a little unusual, as there was something of a tradition of justices resigning at the end of the term, in June. White spun an elaborate theory, which Klain had trouble following, about how the Court had now accepted all its cases for the year and that made it a good time to leave. Besides, White added, “I’ve done this job long enough.” Despite everything, White said, he remained a Democrat, and he wanted a Democrat to appoint his successor.
Before Klain got up to leave, he asked when White planned to release the news to the press.
“Ten a.m.”
Klain blanched. It was already past 9:15, and he wanted to make sure his colleagues in the White House weren’t blindsided by the news. Klain had walked to the Court from his home on Capitol Hill, so he had no car to race across town. Should he go back and get it? Catch a cab? He borrowed the phone in White’s secretary’s office and tried to reach Bernie Nussbaum, the White House counsel, or his deputy, Vince Foster. No one was available. And he couldn’t call when he was en route, because cell phones did not yet exist. His panic rising, Klain started dialing any White House number he could remember and finally passed the news to Ricki Seidman, a colleague. He then ran into the plaza in front of the Court and waved down a taxi.
At 9:45 a.m., Betty Currie, the president’s secretary, was waiting outside the Oval Office for Klain’s arrival. Moments later, slightly out of breath, Klain handed the letter to Clinton, who had already been told its gist.
“Strange,” Clinton said. “He was just here. He looked good.” The previous week, White had come to the Oval Office to swear in Janet Reno as attorney general.
“Okay,” Clinton said, handing White’s letter back to Klain. “Let’s talk about this tomorrow.”
If Byron White wasn’t a typical Democrat, neither was Bill Clinton. That was especially true when it came to the defining subject before the Supreme Court, abortion.
In 1992, a fiery Texas politico had opened the Democratic Convention with the words, “My name is Ann Richards. I’m prochoice, and I vote.” The remark was a testament to the centrality of abortion rights in Democratic Party orthodoxy. The issue marked perhaps the clearest difference between the two parties, one prochoice and the other prolife. Indeed, Robert P. Casey, the governor of Pennsylvania (and the defendant in Casey), had been denied the chance to speak at that convention in part because of his prolife views. Clinton himself was prochoice; he could never have been nominated otherwise. But Clinton’s view of abortion reflected his centrist New Democrat approach. He recognized that the subject of abortion made many people, especially swing voters, uncomfortable, and he wanted at least to reassure them that he recognized the difficulty