Newly Released Clinton Papers Dish on Ginsburg, Breyer

Newly Released Clinton Papers Dish on Ginsburg, Breyer Photo: Diego M. Radzinschi/NLJ. Ruth Bader Ginsburg.

The latest papers from the Clinton White House, released Friday, show the intense preparations for the 1993 confirmation hearing of Ruth Bader Ginsburg to the Supreme Court—including the involvement by several top law firms. And the papers reveal the White House’s concern that year over the potential nomination of Stephen Breyer to the high court.

A memo recounting highlights of the June 23, 1993, White House meeting—just days after Clinton nominated Ginsburg—indicates that the law firm now known as Wilmer Cutler Pickering Hale and Dorr was assigned to draft “a detailed analysis of her written and spoken word outside the court.” In addition, the memo stated, “a group of lawyers at Covington and Burling is preparing a review of the pattern of questions at the last … hearings for nominees and [Sandra Day] O’Connor.”

Participants in the meeting also discussed how to deal with rumors about “any campaign to help secure her nomination.” In addition, one participant referred to Ginsburg’s husband Martin in discussing a rumor that “some abortion rights zealot in the White House advised Marty Ginsburg to start a campaign to overcome questions about her position on choice.”

Here are other highlights about Ginsburg and Breyer—a top lawyer once called Breyer a “cold fish”—and about the work of Clinton administration lawyers, including Jamie Gorelick and Elena Kagan, as revealed in 2,000 pages released Friday by The National Archives.

1. Concerns about Breyer

Stephen Breyer, then a judge on the U.S. Court of Appeals for the First Circuit, was a frontrunner in 1993 for a Supreme Court seat that ultimately went to Ruth Bader Ginsburg.

A memo in the Clinton files suggests that White House officials were concerned in 1993 about how the Senate Judiciary Committee would react to reports that Breyer had failed to pay Social Security taxes for a household employee. Breyer paid the taxes retroactively when he became aware of his omission.

Ronald Klain, then deputy White House counsel, wrote a revealing memo in June 1993 assessing how upset each member of the Judiciary Committee might be about the issue. At the time, the Clinton White House was smarting from similar controversies concerning domestic employees of potential Cabinet members.

Klain wrote that he personally contacted four senators and found general support for Breyer, who had once worked for the Judiciary Committee. Then-Senator Joseph Biden, D-Del., was “positive” on the issue, Klain wrote. Of Sen. Edward Kennedy, D-Mass., Klain said, “Of course, he is fine.” Similarly, Klain said Sen. Orrin Hatch, R-Utah, was “ready to defend Breyer to the death.” Sen. Strom Thurmond, R-SC, Klain said, “probably is ok. Doesn’t really understand the problem. Likes Breyer generally.”

Klain had pithy comments about several other committee members too. Sen. Howard Metzenbaum, D-Ohio, “does not like Breyer because he is conservative on antitrust, and because Hatch/Dole like Breyer,” Klain said. He wrote of Sen. Patrick Leahy, D-Vt., “He can be prickly if ignored, and he has been ignored.” Sen. Dianne Feinstein, D-Calif., is “very skittish on the social security [issue] general,” Klain said, while Sen. Charles Grassley, R-Iowa, “can be difficult and stubborn, and probably remembers Breyer the least.” As for Sen. Arlen Specter, D-Pa., Klain said, “Same as above, with Grassley. Also, he likes the personal attention.”

Reports at the time also suggested that Breyer, who had broken some ribs in a bicycle accident just before being interviewed by Clinton, did not hit it off with the president. Whatever the reason, Ginsburg got the nod instead, and Breyer waited until 1994 when Justice Harry Blackmun’s retirement opened another vacancy for him to fill.

2. Ginsburg’s ‘humanity’

During a brief period in 1993 when President Clinton was considering both Ruth Bader Ginsburg and Stephen Breyer for the same Supreme Court seat, a top White House lawyer said Ginsburg had “more of the humanity that the president highly values” than Breyer.

Joel Klein, then a deputy White House counsel, evaluated both potential nominees in a June 11, 1993 memo to his boss Bernard Nussbaum. At the time, Ginsburg was a judge on the U.S. Court of Appeals for the D.C. Circuit, while Breyer served on the First Circuit.

“I would say that Judge Ginsburg’s work does not have the obvious brilliance that Judge Breyer’s work does and her opinions tend to be less pedagogical and, in that sense, less remarkable,” Klein wrote. “Nevertheless, hers is plainly a first-rate legal mind and her opinions are extremely well-written, measured and fair.” Klein’s comment about Ginsburg’s “humanity” appears to be based on his view that “she has written more, and consistently, about the human condition and the plight of the disadvantaged, and she has done so with obvious conviction and commitment.”

On social issues, Klein said, “Judge Ginsburg is best seen as a liberal-leaning moderate, whereas Judge Breyer is a down-the-middle moderate.” Ginsburg, he predicted, “is likely to be a strong leader for the moderate bloc on the Suprmee Court, moving them toward a more solidly progressive view on human rights issues. She has the intellectual horsepower, the discipline, and the personal style to do this.”

Klein went into detail about Ginsburg’s views on abortion rights, especially her crituque of the 1973 Roe v. Wade decision.

While agreeing that the Texas abortion law in the case was unconstitutional, Ginsburg had written according to Klein, that “the court’s opinion was so far-reaching that it shut down all political debate and galvanized the radical right.” Klein said her views would get attention during the confirmation process “because the voicing of any concerns about Roe is viewed by some as cause for alarm.” But Klein emphasized that “Judge Ginsburg has not suggested that Roe be abandoned.”

Two days after Klein wrote the memo, President Clinton announced he was nominating Ginsburg.

3. Breyer the ‘cold fish’

Two of the federal government’s top lawyers who argue before the Supreme Court wrote memos 21 years ago that were critical of Stephen Breyer, one of the justices they argue before. One called Breyer a “cold fish,” adding that nothing in Breyer’s opinions “suggests that he would be a great Supreme Court justice.”

Deputy Solicitor General Ian Gershengorn made those comments along with Thomas Perrelli, who recently served as associate attorney general, when Breyer was under consideration for a Supreme Court seat in 1993. Their memo, along with one by Solicitor General Donald Verrilli Jr., were among hundreds of documents released by the Clinton Library on Friday.

“There is very little heart and soul in Judge Breyer’s opinions,” wrote Perrelli and Gershengorn, then a lower-level Justice Department lawyer. “Conservatives will be thrilled if Judge Breyer is appointed.” He explained that Breyer “would never be a conciliator or a consensus builder on the Court; not only does he lack interest in many subject matters, but his opinions do not reflect the sort of verve necessary to build coalitions.”

Verrilli, in his memo, also weighed in on Breyer, apparently as an informal adviser to the Justice Department at the time. While asserting that “Breyer’s intellectual power and commitment to the judicial craft are exceptional,” Verrilli said that many who reviewed his work as an appeals court judge came away with “a sense of disquiet about the extreme detachment reflected in Judge Breyer’s opinions.” While that characteristic shows a “faith in reason and rational explanation,” Verrilli said it did not show “any deep convictions or passions … It is difficult to imagine Judge Breyer as the author of the next Brown v. Board of Education.”

4. Jamie Gorelick gets “appalled”

A legal advisor wrote National Security Advisor Samuel Berger in March 1997 to say then-deputy attorney general Jamie Gorelick was “appalled” at the actions of FBI Director Louis Freeh during a trip to the Middle East.

In a memo, Gorelick was said to dislike that Freeh had discussed the handling of the Mousa Mohammed Abu Marzook extradition with Jordanian officials in his recent trip to the Middle East, and with Palestinian leader Yasser Arafat during Arafat’s visit to the U.S.

Israel requested for the extradition Marzook, the reputed leader of Hamas, who was in prison in New York.

Alan Kreczko wrote that Gorelick, now chair of Wilmer’s defense, national security and government contracts practice group, reported that Freeh claimed he had coordinated with Berger.

“Jamie said Freeh will only discontinue his unilateral sojourns into foreign policy if he hears firmly from you that such communications must be carefully and thoroughly coordinated in advance,” Kreczko wrote.

“She also mentioned that DOJ still has not gotten a read-out from the FBI on the substance of Freeh’s conversations with foreign officials on the Marzook matter. (We saw press pieces from Jordan on such contacts and dismissed them as fabricated, not imagining that Freeh would be holding discussions on Marzook.)”

“In any case, direct, uncoordinated communications by the FBI on sensitive policy matters with foreign governments is unacceptable,” Kreczko wrote. He suggested Berger call Freeh and tell him: ” I can’t emphasize enough the need for any discussions on it to be coordinated with us and the State Department in advance.”

He suggested Berger call Freeh and say to him: ” I can’t emphasize enough the need for any discussions on it to be coordinated with us and the State Department in advance.”

5. Kagan advises on SCOTUS

More than a decade before U.S. Supreme Court Justice Elena Kagan was confirmed, she was helping White House officials understand the high court’s rulings. In 1996, she wrote a memo to senior White House advisor Harold Ickes explaining a recent Supreme Court decision, Seminole Tribe of Florida v. Florida, which involved state sovereign immunity issues.

The memo revealed the uncertainty a Supreme Court ruling can leave in its wake. The practical effect of the court’s decision in Seminole Tribe on Indian gaming was “very uncertain,” wrote Kagan, who was an associate counsel to the president at the time. “Also uncertain is the effect of the decision on other kinds of enforcement actions brought against the states,” she added.

Kagan predicted that the Seminole Tribe decision wouldn’t be the last to pursue a “states’-rights agenda.”

“The decision will doubtless stand in the way of at least some citizen suits brought to enforce federal law (as it barred the Seminoles’ own lawsuit),” Kagan wrote. “And the decision, especially when viewed together with the holding last year that Congress lacked authority to prohibit guns near schools, indicates a serious effort by a bare majority of the Court to reorient the balance of power between the federal government and the States.”

6. Genocide in Rwanda

A legal advisor to the White House weighed issues about the genocide in Rwanda. In a memo from May 26, 1994, Alan Kreczko wrote that the conclusion that genocide was taking place in the country at the time did not “create a legal obligation to take particular action to stop it.”

Kreczko noted that human rights groups had argued that failing to act “makes one legally responsible as an accomplice,” but added that his office did not agree. “Of course, making such a determination will increase political pressure to do something about it,” he wrote.

Kreczko is now general counsel and executive vice president of The Hartford, an insurance company. His title in 1994 wasn’t included in the memo, but he served in the 1990s at different times as a legal adviser to the U.S. Department of State and as special assistant to the president and legal adviser to the National Security Council.

7. Big Picture on Patents

Bill Clinton made a personal note about the U.S. Patent and Trademark Office on a long memo from Neal Lane, then the director of the White House Office of Science and Technology Policy. Lane was detailing what would happen with gene patents in February 2000.

The PTO had published draft guidelines for obtaining gene patents, but Lane explained the situation and how it was not resolved. Lane also wrote that then-Patent Commissioner Q.Todd Dickinson—now the executive director of the American Intellectual Property Law Association—had not yet provided examples of a crucial provision that stated an applicant must disclose a “specific and substantial utility that is credible.”

At the top of the memo, Clinton wrote: “Neal, A separate question is whether the patent office has the capacity to make (a) the right calls, (b) in a timely way. Does it?”

There is no response attached to the memo.

For earlier NLJ coverage of the Clinton White House document releases:

Documents Dish on Clinton-Era Lawyers

Clinton-Era Documents Detail White House Legal Discussions

Clinton-Era Letter Gives Peek into Judicial Nominations Process

Contact Tony Mauro at tmauro@alm.com and Todd Ruger at truger@alm.com. Marcia Coyle and Zoe Tillman contributed.

This post was updated at 5:13 p.m. with more details from the Clinton papers.

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