Sonia Sotomayor. (Diego M. Radzinschi/NLJ)
Updated 3:31 p.m.
The latest papers from the Clinton White House reveal behind-the-scenes concerns about three lawyers who would join the U.S. Supreme Court: Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor.
A White House memo titled “Judge Ginsburg: Performance Pitfalls” was among about 1,000 pages of previously unpublished documents released Friday through the Clinton Presidential Library in Little Rock, Ark.
The memo described Ginsburg’s style as “laconic” and said she was openly disdainful of the confirmation process.
The Clinton records also revealed the administration’s concern that Sotomayor would face a “vicious attack” from Republicans if she were ever nominated to the U.S. Supreme Court. Under Clinton, Sotomayor was appointed to the U.S. Court of Appeals for the Second Circuit.
Here are highlights from White House documents about Ginsburg, Sotomayor and Justice Stephen Breyer, in addition to other government lawyers:
1. Ginsburg’s ‘Hostility’
A top White House aide expressed concern about then-Supreme Court nominee Ginsburg in a memo titled “Judge Ginsburg: Performance Pitfalls.”
“Her hostility to the process … is evident,” then-associate White House counsel Ronald Klain wrote in a July 14 memorandum to David Gergen, a top adviser to President Bill Clinton. “She believes (and may state) that the current process should be replaced by the one used for Chief Justice Burger: a one-hour hearing with no substantive questioning.”
The memo was apparently written after Ginsburg, then a judge on the U.S. Court of Appeals for the D.C. Circuit, had gone through some practice questioning in preparation for her Senate confirmation hearing. Klain expressed concern that Ginsburg would defend her days as a lawyer for the American Civil Liberties Union too strongly.
“She has an instinct for defending some rather extreme liberal views” when asked about the ACLU, Klain said. “She also relishes defending the ACLU as an institution, and its importance in American society.”
Klain also said he was worried that Ginsburg’s halting speech and her “laconic nature” in answering questions was “not helpful.” He also stated, “When asked a specific question, Judge Ginsburg seems unable (or unwilling) to reassure that questioner’s underlying concerns, and instead, seems set on answering the specific charge (or, more often, nitpicking some aspect of the question’s premise.”
Klain warned Gergen to be “cautious” in discussing the confirmation hearing with the nominee.
“Judge Ginsburg views the White House’s interest and her interests as being at odds with each other. She sees us as having a stake in presenting her as a moderate and in getting along well with the Senate; she sees her interest as ‘being herself,’ preserving her ‘dignity,’ and promoting her ‘independence.’”
As it turned out, Ginsburg was reserved and cautious in responding to questions at her hearing, and she was confirmed by a 96-3 vote in the full Senate.
2. Sotomayor’s ‘Fierce Independence’
Sotomayor was nominated to the U.S. Court of Appeals for the Second Circuit by Clinton in 1997. Although her nomination was reported out of the Senate Judiciary Committee with only two negative votes, the nomination had stalled on the Senate floor for almost a year.
At that point, the White House Counsel’s office, clearly with an eye on Sotomayor’s potential as a Supreme Court nominee, offered the following assessment of the Second Circuit nomination:
“Although she has an engaging personality and is very intelligent, her nomination has posed more problems than any of the other Hispanic judges sitting on the federal bench (with the possible exception of Richard Paez for the Ninth Circuit). … Senate resistance to her confirmation is rooted in the fear that she will be elevated to fill the next Supreme Court vacancy.
“Despite the business orientation of her corporate legal practice, and her stint as a prosecutor, Sotomayor has been portrayed as a judicial activist by Senate Republicans.
“Her fierce independence, and her no-nonsense style are admirable, but her nomination to the Supreme Court may prompt a vicious attack by Senate Republicans.”
3. Fears About Breyer
Then-Supreme Court nominee Breyer’s previous views as a member of the U.S. Sentencing Commission raised red flags as a potential problem for his Senate confirmation in 1994.
While serving as a judge on the U.S. Court of Appeals for the First Circuit, Breyer was also a member of the sentencing commission from 1985 to 1989. An analysis of his views expressed at commission meetings, apparently prepared by Jenner & Block, found that Breyer “leaves himself vulnerable” on several sensitive issues.
Some of Breyer’s statements, according to a memo, “could be read to encourage judicial assertion of sentencing discretion, incurring the wrath of those who fear excessive judicial leniency.”
Breyer’s views on the commission’s role relating to the death penalty also raised concern, according to the memo. And at a December, 1986 meeting of the commission, Breyer strongly opposed setting guidelines for the federal death penalty.
Breyer was apparently concerned that establishing guidelines for the federal death penalty statute would turn a law that was then viewed as unconstitutional into one that passed constitutional muster. “He did not think that Congress felt it was delegating that authority,” the memo stated.
4. Martin Ginsburg’s Confirmation Role
Documents lend credence to the significant role played by then-Supreme Court nominee Ruth Bader Ginsburg’s husband Martin in her 1993 confirmation campaign.
Martin Ginsburg, then a prominent tax lawyer with Fried, Frank, Harris, Shriver & Jacobson, wrote a letter suggesting possible witnesses who would support his wife at upcoming confirmation hearings.
Dated July 1, two weeks after Clinton announced her nomination, the letter was addressed to Michael Berman of the Duberstein Group, a Clinton advisor.
Ginsburg suggested that former American Bar Association president Chesterfield Smith should be “first among nonacademics” testifying in support of his wife, then a judge at the D.C. Circuit. He described Smith as “a truly warm and admiring friend of Ruth going back at least 15 years.”
Another possible witness, Ginsburg said, was longtime D.C. lawyer William Coleman Jr. “Some of the best advice I received over the 12 weeks preceding the nomination came from Bill,” Martin Ginsburg said. “He is of course a Republican but, I discovered, he had better access to reliable White House information than virtually anyone.”
Ginsburg also recommended that former Columbia University president Michael Sovern testify on Judge Ginsburg’s behalf. Sovern is “a man of great stature whose letter to the president, copy to [New York Senator] Pat Moynihan, had much to do with the senator’s decision to promote Ruth for the court.”
Another suggested witness on Ginsburg’s list was Stanford Law School professor Gerald Gunther, described as “probably the leading constitutional law scholar in America (some would say Larry Tribe but I would not.)”
Martin Ginsburg died in 2010 at age 78.
5. Fight Over DOJ Civil Rights Pick
In 1993, Clinton’s nomination of Harvard Law professor Lani Guinier to head the Department of Justice’s Civil Rights Division triggered one of the most brutal controversies over a presidential nominee in recent memory.
Dubbed the “quota queen” by a former Regan Justice Department official, Guinier claimed her views had been distorted by the political attack. On June 1, 1993, William Galston, deputy assistant to Clinton, urged the president in a memorandum to withdraw the voting rights scholar’s nomination because “the perspective she would bring to the Justice Department would ill serve the interests of our country and your administration.”
Galston went on to explain how Guinier’s understanding of the Voting Rights Act in particular was “inconsistent with the intent of Congress and outside the mainstream of judicial opinion.” Implementing that act, as Guinier understood it, he said, “would undermine your longstanding effort to promote reconciliation across racial and ethnic lines.”
He told Clinton: “Whatever the eventual outcome may be, this is the wrong fight at the wrong time. I urge you to withdraw her nomination before the damage mounts.”
Guinier’s file also contains “Notes for a Presidential Statement” in which Clinton, in his handwriting in the margins of the statement, struggles to acknowledge the “terrible ordeal” which she had undergone and to justify the withdrawal of her name, in part, because he failed to read her academic writings.
For earlier NLJ coverage of the Clinton White House documents:
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