5 mishaps in the Ginsburg nomination

James B. O'Hara

June 18, 1993|By James B. O'Hara

FINALLY the ordeal is over. The presidential staff breathes a sigh of relief. A confirmable Supreme Court nominee has been found and now we are in the Rose Garden to meet her. The president speaks graciously, even eloquently, about the nominee's impressive accomplishments as a teacher, as an advocate and litigator for women's causes, as an appellate judge.

The nominee replies, simply and even more eloquently. A happy occasion for all. The president smiles, the nominee receives hugs and good wishes from family and friends. Everyone beams.

There is a jarring note. A reporter provokes the president to an angry reply after posing a question suggesting that the process for picking the nominee was flawed, a "zig-zag," he calls it. The president is peeved. The aggression of the press has broken the spell, has shattered the holiness of the hour. The president is irked that the minions of the media do not see the earnestness and good will of his young presidency and do not credit him with the outstanding appointment he has just announced.

The fact is, the president is wrong. His way of choosing a Supreme Court justice may well be the worst in history, at least the worst ever devised by a president, especially one whose party controlled the Senate by a comfortable majority. The press has only criticized the erratic (and very public because of staff leaks) jumping from Secretary Bruce Babbitt to Judge Stephen Breyer to Judge Ruther Bader Ginsburg in dismaying, unpredictable, gasp-inspiring jolts. But it is not only the final days of the search that went wrong.

The process began to go awry even before Bill Clinton was

elected. One by one, we can list the fatal mishaps.

Even before there was a Supreme Court vacancy, candidate Clinton mused aloud that Gov. Mario Cuomo would make a fine justice. Idle speculation about one potential justice severely limits a president's options. The president was lucky: Governor Cuomo removed his own name early. Good thing, because an eloquent liberal wasn't exactly what he was looking for anyway. But dangling the governor's name was Mishap No. 1.

Mishap No. 2 was the promise of a litmus test on abortion. While every president, of course, wishes to nominate judges broadly representative of his own philosophy, single-issue tests are always a political morass. Mr. Clinton said he had to do it because Ronald Reagan and George Bush had. Well, if they did, they were wrong, too. (And if they did, Justices O'Connor, Kennedy and Souter must have been absent on Litmus Day.)

Mishap No. 3 was the most egregious of all. Mr. Clinton simply did not seem to understand that appointments to the Supreme Court are the most important appointments a president ever gets to make. It is one of the most important policy issues of an entire presidential term. Justice Byron White, whose resignation created the present vacancy, was named to the court 31 years ago. Long after President John F. Kennedy's death, long after many of the issues of the 1960s had been forgotten, Justice White continued to exert massive influence on the philosophical direction and legal policy of the nation through the administrations of six presidents.

Mr. Clinton seemed to rely on staff to do much of the work -- the same staff already overwhelmed by the formidable tasks of picking hundreds of ambassadors, assistant secretaries and administrators. No doubt the staff is smart and bright, but what the president needed was wise and seasoned. The consideration given to candidates was, as a result, shallow and superficial. The Justice Department, still without experienced direction, was no help; the attorney general was new. The president was preoccupied with other problems. There seemed no sense of overriding importance.

Then the process dragged on for three months -- Mishap No. 4. Mr. Clinton initially saw no sense of urgency. After all, Justice White was not leaving the court until the end of the term in June. Granted, an early nomination could have provoked potshots from Republican senators still smarting from the roughing-up Democrats had given their nominees. But delay is worse, because it invites problems from the president's own party. Delay invites petty intrigue, back-room manipulation, self-aggrandizing letter campaigns.

The nomination dragged on. Now there is some question about whether the confirmation will be scheduled before the summer recess, since all the background and security checks must be completed first. The last president to take so long a time for a Supreme Court appointment was Lincoln, but the Civil War was reason enough for a postponement then. In normal times, procrastination is never a president's friend.

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