Advice to Supreme Court hopefuls waiting by the phone

With several weeks to go before President Biden’s self-proclaimed deadline for nominating a new justice to the Supreme Court, any shortlisted prospects will have to exercise considerable patience before they learn the outcome. The experience of the late Justice Ruth Bader Ginsburg suggests, however, that good things come to those who wait — and wait.

In March 1993, Associate Justice Byron White announced his retirement, giving Bill Clinton an opportunity early in his presidency to nominate a successor. Clinton’s White House counsel, Bernard Nussbaum, set in motion a protracted search process, later describing what happened in a confidential oral history interview at the University of Virginia’s Miller Center.

Ginsburg, then an appellate court judge, initially was not near the top of their list. Nussbaum and Clinton first sought a nominee distinguished by practical political experience. Their model was Earl Warren, who came to the high court directly from the governorship of California.

The White House first tried to lure then-New York Gov. Mario Cuomo into the seat, an appointment that coincidentally would sideline one possible in-party challenger to Clinton in 1996. Cuomo refused the nomination notwithstanding considerable wooing.

Clinton subsequently made overtures to three members of his cabinet: Secretary of State Warren Christopher, Secretary of Education Richard Riley, and Secretary of Interior Bruce Babbitt. For a time, Babbitt seemed to be the winner. But just days away from nominating the former Arizona governor, Clinton balked. In the end, Babbitt was deemed too valuable in dealing with ticklish land problems in the West, and there were delicate ethics issues that might complicate his confirmation. The Earl Warren gambit thus came to naught.

In the meantime, March had turned to June.

“At the last minute,” Nussbaum recalled, “I [had] to get somebody else.” That’s when Ginsburg rose to the top of the short list. Her background as an activist for women’s issues appealed to them both — as did, for Nussbaum, the fact that she was Jewish, although he claims that Clinton considered this immaterial. Nussbaum explored a prospective nomination with her during a private dinner in Washington, and then got her invited to the White House to meet with Clinton, the usual final step. That meeting came more than a month after Ginsburg’s name first surfaced in a New York Times article enumerating the various prospects.

“I introduced the president to her and they go off for an hour and a half,” Nussbaum recalled. Afterward, she reported to Nussbaum that the meeting was “wonderful.” By Nussbaum’s account, “She saw the president, showed pictures of her children, grandchildren, and they talked about other things. She found him enormously charming,” but Clinton didn’t say anything about his intentions. “She was hopeful, but certainly not certain.”

When Nussbaum followed up with Clinton, he heard good news: “Yes, yes, okay, we’ll appoint her.” But when Nussbaum offered to set up a call then and there to seal the deal, the president declined. “He said, ‘I can’t do that. … I’ve got some friends coming over; I’ve got to watch the Arkansas [basketball] game on television. We’re going to have dinner.’ He would call when the game was over.”

Nussbaum was gratified, but nervous. “I [had] had this problem with Babbitt, so I was a little worried here: Every time I think I’ve got something done [it comes unraveled].” Would the president change his mind again? 

Around 8 o’clock that night — with no final word from Clinton — Nussbaum phoned the prospective nominee, partly, it seems, to soothe his own jangled nerves. “I call Ruth Ginsburg and I say, “Do me a favor, don’t go to sleep tonight until you hear from the White House.” She started crying on the phone; it was very touching.” But Nussbaum didn’t dare offer anything more definitive in his conversation than “Wait up.”

In the end, later that night, Clinton made good on his commitment, to everyone’s great relief. “We announced her appointment the next day,” June 14. 

There is, however, a footnote to the story. Years later, when I was fact-checking Nussbaum’s account for an edited book on the Clinton presidency, I located the Arkansas basketball schedule for 1993 and quickly found that the NCAA season was long over by the June dates in question. Was that whole story a ruse? No. Nussbaum was an eminent lawyer but an unreliable sports fan. He misremembered one apparently meaningless detail.

There had been, in fact, a marquee basketball matchup on the Sunday night in question: Game Three of the National Basketball Association finals, featuring Michael Jordan’s Chicago Bulls versus Charles Barkley’s Phoenix Suns. Surely that was the object of Clinton’s attention. And that contest was historic for one pertinent reason: The game went into triple overtime.

Poor Judge Ginsburg. As she awaited the call of a lifetime, when each passing moment must have seemed eternal, she was at the mercy of what the NBA website now calls a “3-hour, 20-minute marathon.” 

So, for those fortunate enough to be on the White House shortlist this year: Be patient. And pray for things to be over in regulation.

Russell L. Riley is the White Burkett Miller Center Professor of Ethics and Institutions at the University of Virginia and co-chair of the Presidential Oral History Program.