The Nine [34]
During the campaign, when Clinton discussed the kind of individuals he would appoint to the Court, he expressed himself with characteristic political dexterity—or, seen in a different light, typical doublespeak. He would have no litmus test for his justices—but he would appoint only those who shared his prochoice views. In fact, Clinton had given the subject more thought than most other future presidents.
On Saturday afternoon, March 20, 1993, the president began to spell out specifically what he wanted in a future justice. In the small dining room adjacent to his private study—later infamous as the site of his trysts with Monica Lewinsky—Clinton met with Vice President Al Gore and White House lawyers Foster, Klain, and Bruce Lindsey to discuss White’s replacement. Almost as a lark, a couple of weeks earlier, Klain and Walter Dellinger, a Duke law professor temporarily on the White House staff before becoming assistant attorney general, had drawn up a list of fifty possible Supreme Court appointees. There were appeals court judges (mostly Jimmy Carter appointees to the federal bench), law professors, a few politicians and private lawyers. The list didn’t amount to much—just a row of names and their current affiliations—but it constituted, at that moment, the full extent of Clinton administration research on Supreme Court nominees. So Klain passed it around.
Clinton glanced at it. “Look,” he said, “the Court is totally fragmented and it’s dominated by Republican appointees.” (Indeed, White was the only Democratic appointee on the Court.) “It’s not enough for someone to vote the right way,” he said. “We’ve got to get someone who will move people, who will persuade the others to join them. It’s what Warren did. I want someone like that.”
Clinton thought it was unhealthy that the Court was dominated by former judges, few of whom had what he regarded as adequate real-world experience. Clinton’s term for these judges was “footnote people,” who were caught up in the minutia of law rather than its implications for people. The names of several nonjudges came up, but it quickly became clear that Clinton was most interested in one of them—Mario Cuomo, then governor of New York.
Clinton and Cuomo had a complicated relationship. Clinton admired the New Yorker’s way with words but found his indecisiveness maddening. Midway through his third term as governor, Cuomo expected a degree of deference from Clinton that the president did not always display. When Clinton first called Cuomo to discuss the Supreme Court, the governor ducked his call. His secretary told Betty Currie that Cuomo was in budget negotiations with the state legislature and couldn’t be disturbed.
Several members of Clinton’s staff—notably George Stephanopoulos and Gene Sperling, a top economic aide who once worked for Cuomo—loved the idea of putting Cuomo on the Court. To them, it was just the kind of bold gesture that could transform the Court and burnish Clinton’s own record as well. When Stephanopoulos spoke to the governor by phone, on March 30, Cuomo wouldn’t commit himself, saying, half jokingly, “I can’t believe you’ve descended to this level of groveling exploitation.”
The back-and-forth lasted several days. Clinton reached Cuomo from Air Force One, and Cuomo said he was leaning against accepting the nomination but would continue to think about it. Clinton left for a summit with Boris Yeltsin with the matter unresolved. As was customary in the Clinton White House, news of the negotiations with Cuomo leaked to the press, embarrassing the president. By April 7, after Clinton had returned to the United States, Stephanopoulos was badgering Andrew Cuomo, the governor’s son and chief adviser, on the phone. We need an answer.
According to Stephanopoulos, Andrew said he had spoken to his father for two and a half hours that day, and the governor ultimately said, “If you want me to, I’ll call Clinton