‘She started crying on the phone’

‘She started crying on the phone’

Bernard Nussbaum, Clinton's White House counsel, tells the story of Ruth Bader Ginsburg's Supreme Court nomination

In September 2002, as part of the Miller Center's William Jefferson Clinton Presidential History Project,  historians Russell L. Riley, Nancy Baker, Stephen F. Knott, and James Sterling Young sat down with former White House counsel Bernard Nussbaum. In this excerpt, he remembers the nomination of Ruth Bader Ginsburg to the Supreme Court.



I had a list, and I started focusing on Ruth Ginsburg. A friend of hers was a close friend of mine. We ate dinner together in Washington when our friends were there from New York. We went to a restaurant in Washington. 


Sort of like matchmaking?


Yes, she wanted me. Everybody was after me, so I agreed to eat with these friends—nobody can influence me in my mind. Obviously, the President is going to make the final decisions on this stuff anyway, although I have a lot of input. So I meet with Ginsburg, and it was nice. We had a very pleasant dinner; it was very charming. 

I looked at the lists that we started, and she was high up on that list. She was good. She was a woman, which was a plus. In my view, although not in the President’s view, it was a plus that she was a Jew. There hadn’t been a Jew on the Supreme Court in 25 years. I thought that was relevant, and I mentioned that to the President, but he said it’s irrelevant. I think he dismissed it out of hand. That’s what he did with me at least. I said It’s relevant that she’s Jewish. He said, Its not relevant. I’m Jewish; he’s not Jewish. I said, There hasn’t been a Jew since Abe Fortas was forced off the Court. But he says No, I don’t care about that. I said, You don’t? He says, We’ll find somebody and we’ll talk. I think he was serious about it, and then we looked into her background, which I knew a lot about. I had talked to her many years before about one of the kids we were hiring in my firm, making him one of my partners. So I knew her somewhat. 

The more we focused on her, she’s moderate in her positions, and—


She had an activist background.


She had an activist background, but moderate as a judge. She’d been a judge for twenty years, and she was not known as a flaming liberal or a dark conservative, but very balanced. And she was the right age, in a sense. See, we’ll have to discuss judicial appointments in even more length. We weren’t these ideologues looking to appoint 40-year-olds that will stay forever. We were looking for people who had lived, balanced people who had a life and a wide range of experience. So she fit those criteria, and it looked like it would be an attractive appointment. It went back and forth. There were other names in contention people that were pushing.


[Stephen] Breyer was also considered. 


Breyer was considered. He came down and met with the President. Vince brought him down. He was being pushed very heavily by Kennedy and others, but some background issue arose, which was nonsense. Everybody was so sensitive at that time because of Zoë Baird. Also, Breyer and the President had had this lunch or meeting alone, and the President didn’t really take to him. Breyer was a good choice, too. 

I wanted Richard Arnold, who was the Chief Judge in the Eighth Circuit. He was a very close friend of the President and Hillary, a superb jurist who I went to law school with, but he had certain health issues. The President said we would appoint him the second time, and he would have been appointed if I hadn’t left the White House. I left just at about the second appointment. The appointments to the Supreme Court would have been Ginsburg and Arnold rather than Ginsburg and—my leaving really affected a lot of lives. Linda Tripp, Monica Lewinsky. You can see, I’m like Zelig. You know it’s not that I’m so important. It’s very interesting how these relationships touch on many people. 

No, he didn’t want to appoint Arnold the first time because there was some health issue, but also because it would have been appointing an Arkansas crony. They were afraid of the cronyism charge. There wasn’t that great a drive for a woman, although a woman is a plus on this. Cronyism was the fear. I said, A crony? This is the chief judge of the Eighth Circuit, he’s been— No, no, no. See, I didn’t win all these appointment battles. I mean, I wanted Babbitt. He pulled Babbitt on me for a political reason. I wanted Arnold, but he didn’t want to go with Arnold then. He said he would go with Arnold later maybe. Arnold would have been magnificent, he’s one of the great jurists in the United States. If you’re going to appoint a judge, you want Arnold. So that’s basically how we came to Ginsburg, who I then started pushing and said yes, okay, she’ll be the candidate, and sure enough she was.

I’ll tell you some stories for the oral history. We were trying to keep this very secret. We were vetting, and she didn’t think she had a chance. Then I call her up and I said, Come back to Washington. She was someplace; she got very nervous and excited, and so I said, Come on back, I’ll meet you at your apartment. She lives in the Watergate. We’ve got to look at your financial records some more. I brought some people down with me to look at financial records. Everything was obviously very clean, and then I said, Okay, tomorrow you’ll go over. I’ll take you over to the White House and you’ll meet the President. He wants to talk to you. She says, Well how should I dress? I say, Oh, the President is going to be coming in from golf. I’m taking her over on a Sunday. Wear something very sporty, very informal, it’s really okay. 

So I pick her up the next day, and we drive her over to the White House in secret. It’s a Sunday, and we go in. My wife drives, and we walk up to the residence. She’s dressed in these slacks, and she looks very nice in a sporty outfit, because the President is going to come from golf. So we get up there, and five minutes later the President starts walking in, dressed in a blue suit, very formal. She says, What have you done to me? He had changed his plans. He was coming back from church. What have you done to me? 

I said, Don’t worry, Ruth, it’ll be okay. I introduced the President to her and he’s the most charming, handsome guy in the world. She looked up at him, and he looked down at her. They sort of go off together, the two of them. They go off for an hour and a half. I go to my office. I’m sitting in my office, and I get a call to come pick her up. I take her back and I say, How did it go? Well, it was wonderful. She saw the President, showed pictures of her children, grandchildren, and they talked about other things. She found him enormously charming and everything, but he didn’t say anything. 

He met her, but he also met Breyer. He didn’t appoint Breyer. Nothing is guaranteed, especially with this President. So she went back to her apartment. She was hopeful, but certainly not certain. So, I talked to the President after I sent her back. I said Well? We’re going to go, right? He said, Yes, yes, okay, we’ll appoint her. I said Good. Why don’t you give her a call? He said, I can’t do that. This was in the afternoon, I think, if I have it right. I’ve got some friends coming over, I’ve got to watch the Arkansas game on television. I said, What time does the Arkansas game start? He said, No, I’ve got these friends. I’ll do it later. I said, You should really call her up. He said, I’ll call her, I’ll call her, but I can’t do it now. I’ll do it later. I say, What time is the game over? I’m in my office on a Sunday, he’s in the residence with his friends and everything. He said, We’re going to have dinner, the game will be over around 11 o’clock at night or midnight. I said, Oh God. 

I’ll call. I promise you I’ll call, but I can’t do it now. I really can’t do it now. I’ll call. So I go back in my office. I had this problem with Babbitt, so I was a little worried here. Every time I think I’ve got something done—I sit in my office, but I know he’s going to do it. I have no doubt he’s going to do it. So about 8 o’clock on a Sunday night, I’m in my office in the White House, mostly by myself, I think. I have this recollection. I call Ruth Ginsburg and I say, Ruth, this is Bernie. Do me a favor, don’t go to sleep tonight until you hear from the White House. [laughter] She started crying on the phone; it was very touching. I didn’t say she was going to be appointed. I didn’t say anything at all, maybe he’d change his mind. I just told her not to go to sleep. She couldn’t believe it. 

Ginsburg took the oath of office on August 10, 1993, becoming the second woman to serve on the nation's highest court.

Four female justices standing
The four women who have served on the Supreme Court of the United States: (from left) Sandra Day O'Connor, Sonia Sotomayor, Ruth Bader Ginsburg, and Elena Kagan. Photo: Steve Petteway, Supreme Court of the United States