The Nine [41]
The year 1994 amounted to a slow-motion disaster for Clinton. Ethical controversies, none major in themselves, kept popping up—among them the disclosure of Hillary Clinton’s windfall profit in commodities trading, the resignation of Associate Attorney General Webster Hubbell, and the prolonged investigation of Foster’s suicide. On February 11, a former Arkansas state employee named Paula Jones held a raucous press conference at a conservative political event, claiming unspecified misconduct by Clinton in a Little Rock hotel room. Health care reform, the centerpiece of Clinton’s presidency, continued its march toward irrelevancy, then death, in Congress.
In the midst of this dismal year, on April 6, Harry Blackmun announced his resignation. Unlike White’s departure the previous year, this change did not come as a surprise. In his separate opinion in Casey, Blackmun had all but announced his plans to leave the Court. “I am 83 years old,” he had written in June 1992. “I cannot remain on this Court forever.” The election of a prochoice president, and then White’s replacement by Ginsburg, told Blackmun that his monument, Roe v. Wade, was safe for the foreseeable future. (With Ginsburg, the 5–4 margin in Casey had become a 6–3 prochoice majority.) At Renaissance Weekend in December 1993, Blackmun had given Clinton a strong hint that he would retire the following year, and that is what he did.
The transformed political environment of 1994 changed the selection process—and the Court itself. The constitutional right to choose abortion may have been safe, but a conservative movement was cresting. Democrats still controlled the White House and both houses of Congress, but the momentum was with their adversaries. To some extent, the shift reflected the immediate political problems of a new administration, but there were deeper trends at work, too. The judicial counterrevolution had been in the making for a long time.
In April 1994, Clinton began the search for Blackmun’s replacement much the way he did for White’s thirteen months earlier. Again, Clinton wanted a politician instead of a judge, and again he asked George Mitchell to take the seat. The Maine senator had already announced that he would not run for reelection in November, so there appeared to be few obstacles to his accepting. But Mitchell told Clinton that he wanted to make one last push for health care as majority leader. Taking the appointment would doom the legislation, he said. In the end, Mitchell just didn’t want to be a Supreme Court justice. After a period of agonizing, Bruce Babbitt also took himself out of the running.
Clinton’s search for a Supreme Court justice returned to its customary location—square one. This time, though, there was a seriousness and discipline that had been lacking the previous year. Clinton had already thought about most of the likely candidates. His own deteriorating political status made a consensus choice virtually a necessity. And there was, finally, the recognition that Blackmun’s replacement would likely be the last appointment that Clinton would get to make. By Supreme Court standards, the remaining justices were relatively young in 1994. For a generation of putative Democratic appointees, it was now or never.
Senator Kennedy resumed pushing for Stephen Breyer. Like many other things about the earlier selection process, news of Clinton’s dismal interview with Breyer had leaked. So Kennedy, ever resourceful, sent the president a videotape of a witty speech Breyer had given to a group of visiting judges from Russia. See, the Massachusetts senator was saying, he’s not such a stuffed shirt. Breyer was fortunate, too, that Nussbaum had been replaced as White House counsel by Lloyd Cutler, a Washington corporate lawyer with a great fondness for Breyer.
For Clinton, though, the real issue was Richard Arnold, the federal appeals court judge from Little Rock.
Arnold belonged to frontier aristocracy. In the early part of the century, his maternal grandfather, Morris Sheppard, had served as a senator from