

			   THE WHITE HOUSE

		    Office of the Press Secretary
_____________________________________________________________________
For Immediate Release                                   April 6, 1994

			    PRESS BRIEFING
				  BY
			     LLOYD CUTLER
		   SPECIAL COUNSEL TO THE PRESIDENT


			  The Roosevelt Room

4:21 P.M. EDT
	     
	     MS. MYERS:  Let's establish the ground rules -- this 
will be on the record.
	     
	     MR. CUTLER:  That means you're not going to get any 
useful information.  (Laughter.)
	     
	     But it's obvious, I think, that one of the most 
important functions a President has is to nominate people to be on 
the Supreme Court.  The Supreme Court is a major, major factor in the 
government of the United States.  It's been called, as you know, the 
least dangerous branch, but in many ways it has the most lasting 
impact of any of the branches.   And a president's appointments have 
an effect that go on well beyond his term or his two terms.
	     
	     President Carter, I remember, served four years and 
never had a single Supreme Court appointment.  And the fact that he 
didn't, and that all those appointments passed to President Reagan, 
made a major difference in the formation of the Reagan -- and what it 
actually --.  
	     
	     This is President Clinton's second chance.  I think he 
was quite successful in his first choice.  And I think the country 
received it very well, and over time it will be -- turn out to have 
been an excellent appointment.  He wants to do fully that well for 
the second appointment.  And that means thorough consideration.  It 
means prompt and very expedited consideration.  And, of course, it's 
his responsibility.  Our mission, together with the Attorney General 
and the Justice Department is to present to him the possible choices 
and everything we know about them, and to some extent, of course, our 
recommendations.  But obviously these are his decisions to make.
	     
	     We're going to set about this process immediately.  
We've been at work on it for sometime because it's been anticipated 
for some months that there might be a second appointment sometime 
this year, or if not this year early next year.  It's only a year ago 
that the last selection was made, so we have good inventory of people 
to work with.  It's going to take a certain amount of updating.  
There are other people who deserve consideration who were not 
seriously in the running the last time around.  All of that will be 
done, and we will present our recommendations and our conclusions to 
the President as promptly as possible.  But they will be very 
carefully done.  
	     
	     Q    Assuming hypothetically that the President might 
want to appoint a sitting member of Congress, are there any legal 
problems that might arise?  And, in particular, would you need 
legislation passed to get around the Emoluments Clause problem?
	     
	     MR. CUTLER:  Well, there are both legal problems and 
political problems depending on where -- there is the Emoluments 
clause.  There had been solutions of that problem in the past.  And 
should everything else work out and the Emoluments Clause be the only 
obstacle, I'm personally confident that a solution could be found.

	     
	     Q    Last time the process involved aides talking 
sometimes even on the record about who the candidates were.  It 
involved people being led through Union Station in front of 
television cameras.  Has a decision been made to try to do this 
process more privately?
	     
	     MR. CUTLER:  Well, I'm not going to talk about who 
candidates are or what names we are considering.  And, in theory, I'm 
to be the spokesman for the White House is doing on this.  And it 
remains to be seen what actually happens.
	     
	     Q    Well, has the President made any suggestions to 
look into --
	     
	     MR. CUTLER:  No.
	     
	     Q    He has no sense of --
	     
	     MR. CUTLER:  We have not yet met with the President 
either to go over a set of criteria or a preliminary list.
	     
	     Q    The President has talked about a government that 
looks like America.  Does that mean that you feel that you have any 
special responsibility to seek candidates are minorities?
	     
	     MR. CUTLER:  Well, there are lots of criteria, lots of 
factors that you would take into account.  There are some very 
obvious ones like judicial demeanor, character, temperament, innate 
legal ability -- all of those are terribly important.  We have 
certainly learned over the years that diversity, looking like 
America, is important.  Without Justice Marshall it might have taken 
us much longer.
	     
	     Q    I'm sorry, I couldn't hear.  Did you say diversity, 
looking like America is appropriate?
	     
	     MR. CUTLER:  It is important.  It's an important factor 
to be taken into account.  Certainly without Justice Marshall on the 
Court, it probably would have taken a white male court a good deal 
longer to appreciate the problems presented by the treatment of 
blacks in this country over the years.  Certainly the presence of 
one, now two women on the Court helped the Court to understand the 
dilemmas raised by the abortion issue and other problems of women. 
	     
	     So diversity is very important.  It's not the sole 
criterion any more than innate ability is the sole criterion.  But 
it's an important factor.
	     
	     Q    But isn't it reasonable to assume they will pick a 
liberal, so-called?
	     
	     MR. CUTLER:  He will -- I imagine -- I'm predicting now 
-- I imagine he will pick someone who generally reflects his sense of 
political and moral values.  Every president does that.  
	     
	     One possible example I can give you is, as you probably 
know, I supported President Reagan's appointment of Judge Bork for 
the Supreme Court.  I would not support or recommend Judge Bork to 
President Clinton.  I felt that President Reagan, given his views, 
that Judge Bork would be an appropriate choice.  But every president 
will pick people who he believes agree generally with him about the 
values of the country.
	     
	     Q    Going back to David's question about an incumbent 
member of Congress.  Has your office done research, prepared some 
kind of paper or an opinion about the process for choosing an 
incumbent member of Congress?  Is this something you've been looking 
at?
	     
	     MR. CUTLER:  Well, there are -- the issue, the 
Emoluments Clause issue has arisen a number of times.  And that is a 
matter of which we are studying, of course.  Other issues are 
essentially political issues relating to the functions of the 
incumbent senator or congressman.
	     
	     Q    Well does the Hugo Black model serve as a precedent 
for someone sitting in the Senate today?
	     
	     MR. CUTLER:  Well, he's one of seven senators, I think, 
who have actually been appointed to the Court.
	     
	     Q    Did you just happen to know that fact --
	     
	     MR. CUTLER:  I have a little memo here.  (Laughter.)
	     
	     Q       and stay in the Senate during their -- prior to 
their confirmation?
	     
	     MR. CUTLER:  Well, because he was Hugo Black and a 
Senator, he was confirmed, I think, within a week of his nomination.  
So he was in the Senate approximately a week.
	     
	     Q    What about the precedent of someone staying in the 
Senate after nomination, prior to confirmation, for an extended 
period of time?
	     
	     MR. CUTLER:  That was true not of a senator, it was true 
of Judge Mikva, a congressman.  There were several months between his 
nomination and his confirmation, and he served as an active member of 
Congress during that period.
	     
	     Q    Do you think it could be arranged so that there 
would be a several-month period between nomination and confirmation?
	     
	     MR. CUTLER:  Well, there's a minimum of eight weeks, 
actually, as I understand it -- under Senator Biden's rules and 
Judiciary Committee rules, between the time of the nomination and the 
beginning of the hearing, so that might be 10, 12 weeks between 
nomination and confirmation.
	     
	     Q    In comparison to the last nomination process, would 
you expect this to go faster, slower, about the same?
	     
	     MR. CUTLER:  My guess is, it would go faster --
considerably faster.  But that doesn't mean tomorrow.
	     
	     Q    You were talking about the criteria a second ago.  
There's been quite a bit of speculation that the President could not 
appoint anyone from Arkansas, for example, right now because of 
political fallout over Whitewater.  Is that accurate speculation?
	     
	     MR. CUTLER:  I would not exclude an appointment from 
Arkansas.  There are very qualified judges in Arkansas.  Some of them 
happen to be conservative.  Justice Blackmun himself was from the A 
Circuit, which is Arkansas Circuit.  So it is a possibility and would 
not necessarily be ruled out.
	     
	     Q    Would there be a political consideration there, 
however?  Would there be any political consideration there?  Would 
that be a problem?
	     
	     MR. CUTLER:  You mean, the fact that if it were an 
intimate of his, a political intimate of his, clearly that might be a 

problem.  But there are judges who are not political intimates of 
his.
	     
	     Q       for a nominee to stay in Congress even after 
being confirmed by the Senate?
	     
	     MR. CUTLER:  I think it would be legally possible, yes.  
Whether -- how politically possible it is, I wouldn't know.
	     
	     Q    Which oath of office would become the operant?
	     
	     MR. CUTLER:  The operative things after confirmation 
are, first, the commission, the signing of the commission, and then 
the taking of the oath.  And you'd have to do both before you 
actually sat on the Court.
	     
	     Q    So you could remain in Congress until you actually 
took that second oath?
	     
	     MR. CUTLER:  From a legal point of view.
	     
	     Q    Has that ever happened, according to --
	     
	     MR. CUTLER:  I don't honestly know.  After confirmation.
	     
	     Q    How are we to read all this enormous culminary 
research into the permutations of -- members of Congress?  This 
didn't take place for the last -- 
	     
	     MR. CUTLER:  Well -- try and raise any speculation on 
your side, because it is not in the slightest sense true that this is 
a decided proposition.  It is certainly the case that Senator 
Mitchell is one of the people, and we are doing the research.  But we 
are doing research on a number of other people.
	     
	     Q    Can you tell us what the universe is -- how many 
people are you doing research on?
	     
	     MR. CUTLER:  I wouldn't want to be precise, but it's -- 
counting the ones we've already done and the ones we may do, it's 
going to be a considerable number, probably reach double digits --
possibly well into double digits.
	     
	     Q    Ten or 12, or --
	     
	     MR. CUTLER:  More or less.  
	     
	     Q    Mr. Cutler, if you have any names to give us -- 
(laughter).  Justice Blackmun told the President back at Renaissance 
Weekend this would be his last term.  Why don't you have a nominee 
ready to be rolling?
	     
	     MR. CUTLER:  Well, first of all, I don't know exactly 
when -- Justice Blackmun spoke to the President.  But for one thing, 
Justice Blackmun never indicated until yesterday precisely when he 
would be ready to retire.  He could have made this announcement two 
months from now.  There have been rumors that he was thinking the 
matter over.  Potential new law clerks for next year were encouraged 
to apply.  Justice Brennan, his great friend, has been saying, I 
never should have left the Court.  There were other reasons why we 
could not be certain that this was about to happen.
	     
	     Q    Is this a true search in the sense of not really 
knowing who the one and two likely candidates are?  We've gone 
through a whole series of these in the last decade where it is 
routinely described to us as a true search -- everyone's getting a 
look at; we're researching a dozen, 15, 700, 112.  And then when you 
get down to the appointment there were two or three people.  Do you 
really think that there are more than two or three likely 
possibilities at this point?
	     
	     MR. CUTLER:  Yes, I do.  I really do.  And I think it 
has to be a true search.  Because even if you incline to one person 
at the beginning for various reasons, you may find some problems 
relating to him personally or his position.  And you may find that 
other people who you hadn't taken too seriously in the beginning have 
credentials that really must be considered.
	     
	     Q    Is the President inclined to one or two people at 
the beginning?
	     
	     MR. CUTLER:  Not to my knowledge.
	     
	     Q    Are you doing all this research on a sitting member 
of Congress without having -- inquire as to whether that person wants 
to be considered?
	     
	     MR. CUTLER:  I have not made the inquiry.  He has spoken 
to a number of you.
	     
	     Q    Has someone made the inquiry on behalf of the 
President?
	     
	     MR. CUTLER:  Should it go much further, I think you can 
assume there would be some contact made, yes.
	     
	     Q    I wanted to say, since one of the Justices who was 
appointed had a lot of lobbying done in their behalf -- by husbands 
and professors and so forth, how effective is that?  And should 
somebody who wants to get on the Court start -- (laughter) -- up and 
down the East Coast?
	     
	     MR. CUTLER:  Do you have a niece or a nephew?
	     
	     Q    Sure.  (Laughter.)
	     
	     MR. CUTLER:  No, I really don't think that that's much 
--
	     
	     Q    Just to go back to the Emoluments Clause thing for 
one moment, is there anything different about a judicial appointment 
in regard to that, that would make the solution that was used for 
Secretary Bentsen, or before that, for William Saxbe or the other 
cases, is it any different?
	     
	     MR. CUTLER:  From a legal point of view, I'd say no, 
there's no difference.  Whether there would be an -- point of view --
	     
	     Q    Is there anyone else you're doing research on right 
now?  Is it just Mitchell for the moment?
	     
	     MR. CUTLER:  Only a year ago, we did a full book, as you 
know, on a number of people.  They are still there -- there are 
others who have had an additional year of service on the bench or in 
some other capacity, who deserve being looked at.  So we are doing 
research now on people we did not do it on at the time of the last 
appointment.  And we have all of the people who were being considered 
at the time of the last appointment.
	     
	     Q    There were about 40 people in that book the last 
time.  It's been -- in any case -- a dozen or so --
	     
	     MR. CUTLER:  The finalists, the semifinalists, whatever 
you want to say.
	     

	     Q    What kind of mission or charge has the President 
given you in terms of what he is seeking?
	     
	     MR. CUTLER:  We have not yet had a detailed discussion 
since I got here.  I think he's been very clear --
	     
	     Q    You didn't have a conversation this morning?
	     
	     MR. CUTLER:  This morning was mostly about Justice 
Blackmun.  But since he has spoken many times about the qualities he 
would look for in a Supreme Court Justice -- ability, diversity, 
character and, as you know, in the past he has been attracted by 
people who have had some sort of political or other life experience, 
in addition to being a pure lawyer.  Clearly one of the things that 
connected him to Ruth Ginsburg was how much she had done in the 
battle for women's rights. 
	     
	     Q    Mr. Cutler, -- last search using outside lawyers to 
vet and research prospective candidates.  Do you plan to use outside 
lawyers to do --
	     
	     MR. CUTLER:  I believe we do.  Yes, we will continue the 
same process as in the past.  There's a limited staff right here and 
in the Justice Department.  This is something lawyers like to do.  
All they're dealing with, really, primarily, are the writings of 
judges -- university presidents.
	     
	     Q    Writing abstracts, that sort of --
	     
	     MR. CUTLER:  Right -- quality of the writings.
	     
	     Q    In the discussions between your office and Justice 
Blackmun on Monday, did the issues discussed include the date of his 
effective, the date his resignation would become effective?
	     
	     MR. CUTLER:  Joe, would like to speak on that?
	     
	     MR. KLEIN:  The actual date in terms of when it is to 
become effective, no.
	     
	     Q    But did you -- to the point in the conversation 
that he was intending to make his announcement --
	     
	     Q    Can you give us the time?  Was that Monday?
	     
	     MR. KLEIN:  It wasn't -- tick-tock.  It was --
(Laughter.)
	     
	     Q    And so -- the idea of establishing September 25th 
as the final date that it would become effective was his idea alone?
	     
	     MR KLEIN:  We found that out this morning, unless he may 
have mentioned it late last night.  But it was -- that was all his --
	    
	     
	     Q    Did he call the President personally or was he put 
through to the President yesterday while the President was out of 
town?  How did that work?
	     
	     MR. KLEIN:  No, he talked to me.  I was actually out of 
town with the President yesterday, and so I happened to communicate 
with the President and with Mr. Cutler.  That's -- 
	     
	     Q    He called you Monday or Tuesday?
	     
	     MR. KLEIN:   He called me Monday afternoon and the next 
thing I did was go to the finals of the NCAA.  So I was otherwise 

occupied.  On Tuesday I had a chance to talk to the President, Mr. 
Cutler, Mr. McClarty.  And that's when we arranged --
	     
	     Q?     He called you on Monday and you didn't tell 
anybody until Tuesday?
	     
	     Q    Did you tell the President Monday night?  In other 
words, in North Carolina?
	     
	     MR. KLEIN:  Yes, the President knew Monday night in 
North Carolina.  And then on Tuesday -- on Tuesday, although, I have 
to tell you, there were other issues on his mind as well -- on 
Tuesday we then -- actually, the President decided that he would like 
to have Blackmun over here to say some words to appear on the 
schedule.  That was the President's decision.  Justice Blackmun did 
not ask to have that happen.  And we had that set up, and that took 
place this morning.  And I confirmed that with Justice Blackmun --
	     
	     Q    You told the President Monday night --
	     
	     Q    We're confused here.  You told him at the 
basketball game?
	     
	     Q    You told him or did Justice Blackmun tell him?
	     
	     MR. KLEIN:  No, I told -- I think, literally, I told the 
President at the game, but I think he had been told before by Bruce 
Lindsey, whom I had told.  I think that's the exact tick-tock.F
Joel Klein first told Mack McLarty, then he informed Bruce Lindsey.
F
	     
	     Q    But he knew about it?  Mr. Cutler, are you aware 
that Secretary Babbitt says he's no longer interested in the 
position?    
	     
	     MR. CUTLER:  I'm not aware of that, no.
	     
	     Q    He just said that in San Francisco -- he's happy 
where he is and that at this point in his life he doesn't want to go 
to the Supreme Court.  Now, does that means he's ruled out as --
	     
	     MR. CUTLER:  I wouldn't say so.  I wouldn't say so.  
	     
	     Q    So he's still a candidate.
	     
	     MR. CUTLER:  He may not be a candidate in the sense of 
applying for the job, but he's one of the people who has been under 
consideration and I imagine would be looked at again.
	     
	     Q    Are qualities of bringing together people as --
bringing the other Justices together into coalitions -- are they --
	     
	     MR. CUTLER:  I believe the President has said that in 
the past.  He has described, for example, the qualities that Chief 
Justice Warren had -- being in the center of the Court and being able 
to achieve a consensus on something as important as Brown against 
Board of Education --.  That's one of many good qualities that you 
would look --
	     
	     Q    Mr. Cutler, if Babbitt's still under consideration, 
does that mean Cuomo is still under consideration?
	     
	     MR. CUTLER:  Well, I shouldn't talk about any -- I'd be 
better off just not talking about names --.  I believe Mr. Cuomo is 
running for Governor, as you know.
	     

	     Q    (inaudible)
	     
	     Q    With the news media so focused on Mitchell, do you 
feel that there's -- or is there any concern that you're being boxed 
into him?
	     
	     MR. CUTLER:  I really don't think so.
	     
	     Q       effort today to say that the door is open to 
everyone, you're now -- the list is up to 10 to 12, that you want to 
keep that door open for a couple of weeks until you get through this 
--
	     
	     MR. CUTLER:  If you were doing it, you would make a 
careful evaluation of everyone involved.  This is -- it is not an 
open and shut gate.
	     
	     Q    Also, to what degree is Mrs. Clinton involved?
	     
	     MR. CUTLER:  I have heard nothing about Mrs. Clinton, 
except as a friend of the Blackmuns, she was of course present this 
morning.
	     
	     Q    Is that your reason -- candidates who don't -- who 
haven't through their public writing or statements supported Roe 
versus Wade would be considered?
	     
	     MR. CUTLER:  There are no criteria that I'm aware of 
that go to particular issues.  There are criteria relating to 
character, temperament, ability, diversity, et cetera.
	     
	     Q    So when the President said during the campaign that 
that would be a criteria, it no longer is because he's picked one 
justice already or --
	     
	     MR. CUTLER:  No.  There is no single issue on which, as 
far as I know, anyway --
	     
	     Q    Do you have a time frame?
	     
	     MR. CUTLER:  A matter of weeks.

				 END4:42 P.M. EDT

