The Nine [36]
More than a month had passed since White’s letter, and Clinton still had no nominee, not even a front-runner. Perhaps, Clinton conceded, after four politicians it was time to look at some judges. There was no question about Clinton’s favorite judge. It was Richard Arnold, who sat on the federal court of appeals in Arkansas. Arnold was a leading ornament of the federal judiciary—a scholarly moderate respected by colleagues across the political spectrum—but the Arkansas connection was troubling. Clinton had already named a number of allies from his home state to top jobs in his administration, and an Arnold selection might have looked like cronyism, especially since Arnold’s wife had served as Governor Clinton’s director of cultural affairs. In truth, the Arnolds and the Clintons traveled in different social circles in Little Rock and were not close friends, but the taint would have been hard to avoid. So Clinton passed on Arnold.
Al Gore had an idea—Gilbert S. Merritt Jr., another Carter appointee to the federal court of appeals, if less well known than Arnold, and a friend of the Gore family from Tennessee. Merritt had appeal on another score. At that moment, Clinton was struggling with the nomination of Lani Guinier as assistant attorney general for civil rights. During her confirmation battle, it emerged that she had written some provocative articles about voting rights that led opponents to deride her as a “quota queen.” The appointment of a white male Southerner like Merritt would reestablish Clinton’s centrist credentials. Clinton sent his vetters to work, and they came back with a possible problem relating to Merritt’s tenure as U.S. attorney, back in the 1960s. It might not have been disabling by itself, but the issue allowed the general lack of enthusiasm surrounding Merritt to turn it into a disqualification.
By this point, Clinton had taken to reading the ever-growing amount of background material on possible nominees himself. Some of the write-ups came from his administration, some from volunteer lawyers who were helping from the outside, and some were simply sent over the transom—from members of Congress or the vast network known as the Friends of Bill (and Hillary). In the meantime, the Guinier nomination blew up, with Clinton withdrawing her nomination after deciding her writings were indefensible. Clinton and his staff’s handling of the Guinier situation was so abysmal that it changed the dynamic surrounding the Supreme Court choice. Now Clinton thought naming a woman was a good idea—to mend fences after the Guinier fiasco.
Clinton plucked a name from one of the lists—Janie Shores. What about her? Clinton asked. So Klain faxed her the vetting forms that all possible appointees had to complete.
Shores was the first woman to serve on the Alabama Supreme Court, but she was utterly unknown in Washington legal circles, and no one—not Clinton or anyone on his staff—had any idea where she stood on constitutional issues or much of anything else.
Bernie Nussbaum, the White House counsel, who was growing increasingly embarrassed as the names came and went, decided to make a stand: “You are not nominating Janie Shores to the Supreme Court. No one knows who she is. This is insane.” Clinton relented. (Inside the White House, the blameless Shores became a symbol of the chaotic process; years later, the mere mention of her name would reduce some staffers to helpless laughter.)
From the day White resigned, Ted Kennedy, the Senate veteran from Massachusetts, had been pushing Stephen Breyer. A former Kennedy staffer and professor at Harvard Law School, Breyer was chief judge of the federal court of appeals based in Boston. Clinton had a real reverence for Kennedy (without the edge