



			   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


4:50 P.M. EST


	     MS. MYERS:  I think we're ready to start.  This is on 
the record.  So, without further ado --
	     
	     Q    Mr. Cutler, could you start by talking a little 
about what timetable you foresee for naming a new justice?
	     
	     MR. CUTLER:  Well, let me start by saying I've been 
asked to brief you on the process we're going to follow in screening 
and then nominating a Supreme Court justice.  And as the President 
said this morning, it's going to be my responsibility along with the 
Chief of Staff and Phil Lader, his Deputy.  I'm sure we'll have lots 
of others.
	     
	     It's really the President's decision, and our job is to 
serve up to him all the information we can put together about people 
who ought to be considered, and perhaps our recommendations among 
that group.  But it's his decision to make.  We'll be working closely 
with the Attorney General and the Department of Justice who have 
always taken part in this process in the past.
	     
	     It's probably one of the most important things a 
president does is to nominate justices of the Supreme Court.  
President Carter, as you know, may remember, never had a chance to 
nominate anyone in his four years.  Ronald Reagan and George Bush 
between them nominated five justices.  And the fact that they were 
able to do the nominating made a major change in the character of the 
Court and its opinions that will last well beyond the Bush and Reagan 
administrations.
	     
	     President Clinton has been fortunate up to now to have 
two nominations in two years.  I think he did very well on the first 
nomination in nominating Justice Ginsburg and that she will serve as 
an excellent Supreme Court justice and have a lasting effect on the 
Court well beyond President Clinton's time in office.  And he wants 
to accomplish the same thing with his second appointment.
	     
	     I would, in response to your question, I would say we 
hope to get this done within a matter of weeks as promptly as we can.  
It will be a major priority for the group that is working on it and 
for the President.  It has to be done as speedily as possible but 
with great care in the light of the importance of the decision that's 
going to be made.
	     
	     It's only a year ago that we were considering the first 
appointment, so we have an inventory of the people who were under 
consideration at that time.  And there are others who have come to 
deserve the fullest consideration since then.  And probably the total 
number of people that we'll be looking at fairly closely will be the 
order of perhaps in the low double digits.
	     
	     And this is not a foregone conclusion.  It isn't a 
perfunctory process -- one person we really want and a bunch of --.  
It's a serious inquiry into who would be the best person.
	     
	     Q    What about -- if you take -- I don't want to get 
into hypotheticals too much, but what about if Mitchell were 
nominated sometime before the President felt that things had 
progressed enough in the Senate for him to go through confirmation?  
What -- is there a conflict there that he has to -- is there a 
precedent for keeping him on in the Senate?
	     
	     MR. CUTLER:  Well, this is a -- it's a question of 
political judgment that certainly isn't for me to make, but will 
require careful consideration.
	     
	     Senator Mitchell, as you know, is the majority leader.  
He is a major figure in carrying out the President's legislative 
program.  And the impact of appointing him, if that were the final 
decision -- and I don't want to suggest that of even leaning 
necessarily in that direction -- we would have to weigh the impact of 
that on the legislative program.
	     
	     There are precedents.  There are some seven sitting 
senators who have been appointed to the Supreme Court of the 110 or 
so that the President talked about this morning.  Hugo Black was a 
sitting senator.   Jim Byrnes was a sitting senator when appointed.  
Harold Burton, who President Truman appointed, was a sitting senator. 
	     
	     There are precedents for legislators after being 
nominated remaining as active legislators until after they were 
confirmed.  Mikva who was the congressman from Illinois, as you know, 
who was named back in my time in the Carter administration started as 
an active legislator for an extended period between the time of his 
nomination and his confirmation which was delayed some time by, I 
think really, by the Republicans and the opposition at the NRA 
because this was 1980, an election year.
	     
	     Q    Did the President ask you to find in his guidance 
to you, if there is such guidance yet, a consensus builder?
	     
	     MR. CUTLER:  Does he have to what?
	     
	     Q    Did he ask you to find a consensus builder?
	     
	     MR. CUTLER:  No, he has -- we have not yet had a talk 
about this particular nomination.  But he has indicated in the past 
that among the many criteria you look for -- character, judicial 
temperament, judicial experience, political or other experience in 
the real world, interest in little people -- one of the justices he 
admired particularly was Chief Justice Warren who was a centrist and 
a consensus builder.  So, certainly, that's another factor I would 
imagine he would take into account.
	     
	     Q    You mentioned the President has mentioned this 
before.  Is this to you before this immediate period or just in his 
--
	     
	     MR. CUTLER:  No, I'm drawing back on the time when I 
wasn't here, but the remarks he made in the run up to appointing 
Justice Ginsburg and what he said when he appointed her.
	     
	     Q    Mr. Cutler, can I clarify when it was that Justice 
Blackmun indicated privately to the President that he would not serve 
another term?
	     
	     MR. CUTLER:   My understanding is, first, that at some 
earlier time during the year he indicated to the President that this 
might very well be his last year on the Court.  But he did not make a 
final decision about that or the timing of his announcement until 
this week.
	     
	     There were rumors that we heard, and others, that 
applicants to be his law clerks next year were encouraged to apply.  
Justice Brennan, his great friend who retired a year or so ago, is 
now saying to everybody, because he feels so much better, I should 
never have left the Court.
	     
	     And we didn't honestly know whether he had made a final 
decision until this week when he called Joel Klein, the deputy 
counsel, who had been a Supreme Court Clerk and whom he knew quite 
well, to say he had made a decision and he wanted to explore what 
would be the best timing -- this week, next week, et cetera, from the 
President's point of view.  And that news was given to the President 
and the timing decision was made between them yesterday.
	     
	     MR. GERGEN:  In fact, those calls occurred on Monday.
	     
	     MR. CUTLER:  The first call --
	     
	     MR. GERGEN:  The first call here came on Monday and Joel 
informed the President on Monday.
	     
	     Q    There's been speculation today that there was in 
fact a deal that the President -- that the Justice told the President 
at Renaissance Weekend that he was going to go this year, and that 
that figured into Senator Mitchell's decision not to run for 
reelection because there was already a deal that he was going to be 
named.  Could you disabuse this or that?
	     
	     MR. CUTLER:  I cannot disabuse you of it, but conspiracy 
theories never die.  In fact, I would very be skeptical of that.
	     
	     Q    The President did not share that information with 
the Majority Leader?
	     
	     MR. CUTLER:  I have no idea.  I have no idea.  But it 
was common gossip certainly among lawyers, law clerks, et cetera, 
that Justice Blackmun would probably retire during this year.  But 
whether he would do it now or June at the end at the term or when, or 
at all --
	     
	     MR. GERGEN:  I don't know for a fact.  We can check 
that.  I am skeptical of it as well.  But it's also been my -- it's 
been in the press that this was likely to be his last year.  I think 
there had been stories, a number of stories earlier in the year to 
that effect.
	     
	     Q    Sir, your list is in the low double digits.  How 
much of that reflects politics?  In other words, often the Supreme 
Court list is a desire to satisfy constituencies simply by mentioning 
a certain group.  How many people in that list fit that mold?  How 
political is --
	     
	     MR. CUTLER:  Well, I want to make clear, this is not a 
game.  It is not that we have somebody in mind and then we want a 
number of other people as stalking horses to weigh in the balance.  
The 10, 12, whatever that I've referred to are those who were very 
seriously considered the last time around or those who, in our 
judgment, we think deserve serious consideration.  I'm not counting 
all the letters we'll get and phone calls, think of so and so.  There 
have been a number of people -- we will run down anything we get.  
But I'm talking about the serious ones.
	     
	     Q    Several years ago, a Hispanic lawyers group said it 
was our time that Hispanics were represented on that Court.  Has the 
President ever conveyed anything to you that he considers that a 
serious thing that needs to be discussed?
	     
	     MR. CUTLER:  Well, considering judicial nominations in 
general, certainly the President, I believe it's fair to say, has 
been quite interested in finding well-qualified Hispanic nominees.  
	     
	     Q    Do you know if one is going to be considered, one 
or more, for this position?
	     
	     MR. CUTLER:  I certainly would not exclude that 
possibility.  I don't want to talk about particular individuals.
	     
	     Q?     Was there research before this announcement with 
the rumors coming out?  I mean, have you done any advance work on 
this?
	     
	     MR. CUTLER:  Well, we had a lot of work done -- not we, 
before I got here a lot of work was done under Bernie Nussbaum and by 
the Department of Justice a year ago in preparation for Justice 
Ginsburg.  And a lot of that carries over and is being brought up to 
date.  And then, as I said, there are other people who have come to 
deserve consideration since then who are under active study right 
now.
	     
	     Q    Mr. Cutler, when you mentioned the precedence of 
sitting senators and stuff.  Was that something that has just 
recently been researched or is that something --
	     
	     MR. CUTLER:  Well, I think there was some talk of at 
least one legislator the last time around, but certainly there's been 
more active research today, yes.
	     
	     Q    Last time around, Governor Cuomo pulled himself out 
of consideration.  Does that leave him out of consideration or is 
this a new day?
	     
	     MR. CUTLER:  Well, I think he's rather busy running for 
office.  But once again, I don't want to include or exclude any 
individual.  
	     
	     Q    Mr. Cutler, besides yourself, who are the other 
team members who are going to be involved in this process?
	     
	     MR. CUTLER:  Well, first, of course, the Chief of Staff 
and Phil Lader.  In the Counsel's Office, Joel Klein, who's the 
Deputy Counsel; Vicki Radd, who is in charge of screening most 
judicial appointments.  There will be a group in the Justice 
Department that we'll be working with.  And we always get very good 
advice from Mr. Gergen, Mr. Stephanopoulos, all their friends.  
	     
	     Q    Mr. Cutler, in the last search for a Supreme Court 
nominee the White House relied on a group of some 75 private lawyers 
to vet prospective nominees.  Are you doing that this time as well?
	     
	     MR. CUTLER:  They will continue that process.  They will 
update those people, and we -- the lawyers to update the new people.
	     
	     Q    Will you let us know who they are?
	     
	     MR. CUTLER:  I don't know what we've done in the past.
	     
	     MR. GERGEN:  I doubt it.  You mean the outside lawyers?
	     
	     Q    The outside people.  You didn't last time.
	     
	     MR. GERGEN:  Why should we change?
	     
	     Q    Well, why shouldn't you let us know?
	     
	     MR. GERGEN:  Well, I was not -- I guess I had just come 
aboard when a lot of this happened.  But I was not aware of it -- how 
we handled the 75.  We'll look at that.
	     
	     MR. CUTLER:  What they do essentially is to make a 
detailed analysis of written opinions and articles, et cetera.  It's 
not extensive personal interviews or anything like that.
	     
	     Q    Mr. Cutler, you said you expect the process to take 
a matter of weeks.  Would you assume that the process would take 
about the same amount of time as for Justice Ginsburg, or would you 
think less?
	     
	     MR. CUTLER:  I hope less time.  I hope a good deal less 
time, in part because a number of the people under consideration were 
under consideration the last time.
	     
	     Q    When might confirmation hearings begin then?  Would 
they begin in the --
	     
	     MR. CUTLER:  As I understand it, the Senate Judiciary 
Committee rules require a waiting period of eight weeks or more 
between the time of the nomination and the beginning of the hearings.  
I think in Justice Ginsburg's case it did start in the seventh or 
eighth week, but that's because the Republicans agreed to waive some 
of the technical committee rules.  So if you figure eight weeks after 
a nomination, and then, once again depending on the candidate -- that 
there is, a couple of weeks for hearings, and then a committee vote.  
You're probably talking about process of the order of 10-12 weeks 
after nomination.
	     
	     Q    But you would like a justice confirmed --
	     
	     Q       you hope for it in weeks.  Is there an inference 
of weeks, not months, or is --
	     
	     MR. CUTLER:  I think that's fair to say.
	     
	     Q    Weeks not months.
	     
	     Q    If I could ask David a question.  Even though you 
legally could nominate George Mitchell and have him continue to 
service as Senate Majority Leader while in this process, before 
confirmation, do you think that politically that would be quite 
complicated, particularly at a time you're pursuing such a big 
legislative proposal as health care?  Or do you think that's 
basically something that's kind of doable and wouldn't be a big 
problem?
	     
	     MR. GERGEN:  Well, I think Mr. Cutler put it well in the 
statement when he said before he got to the legal question, he talked 
about a matter of political judgment -- political judgment had to be 
made on that.  And I think that's a thing the President would want to 
weigh.  I'm sure there will be some consultations on that question 
that will occur.  But I would also underscore the point that Lloyd 
also made about don't assume anything about there's a leaning one way 
or the other about the candidates.  We're responding to questions 
because of the nature, the issue you're raising; we feel it's 
important that we respond today to that.  But we don't want to do 
that -- we want to do that in the spirit of understanding that there 
is no leaning one way or the other.
	     
	     Q    I recognize that you already said you haven't had a 
session with the President to sit down and go over a search list.  
But do you get any sort of sense or do you have any sort of idea as 
to the attributes of a candidate you're looking for as far as 
particular issues are concerned; someone who would fit the same type 
of --
	     
	     MR. CUTLER:  Every president does, and I think most 
people concede, has the right to select nominees who have the basic 
judicial temperament, character, ability, qualifications to be a 
Supreme Court justice, but who generally share the president's sense 
of values -- constitutional values, political values, et cetera.  But 
there is no single litmus paper issue that would rule anybody in or 
out.  
	     
	     Q    How soon would you expect the President to be able 
to sit down with possible candidates?
	     
	     MR. CUTLER:  Once again, I have to say all within a 
matter of weeks.
	     
	     Q    Any lessons learned in the experience last time 
around that will be applied this time?
	     
	     MR. CUTLER:  I think there's a desire not to take as 
long as last time, and not to float names around as much they were 
floated the last time, meaning, to control our own leaks.
	     
	     Q    Any lessons learned from some of the 
administration's other vetting experiences that will sensitize you 
and the other advisers in this process?
	     
	     MR. CUTLER:  You say from other administrations?
	     
	     Q    No, no, from the administration's other vetting 
experiences about what went on for finding the AG and some of the 
other nominees were --
	     
	     MR. CUTLER:  We're now 15-16 months into this 
administration.  And issues that people didn't think were serious at 
all -- I think most of them have been -- by now, like the nanny 
problem, similar problems.  No, I don't think vetting is going to be 
a difficulty.  Most of these people are quite well-known anyhow.  The 
basic job will be to appraise competitively their various qualities.
	     
	     Q    To what number does the short list need to shrink 
before candidates are actually sitting down with the President?  How 
many people do you expect he'll talk to?
	     
	     MR. CUTLER:  Well, last time he sat down with, what, 
two, three?  It really varies.  And it also varies with whether the 
people recommended are people he personally knows over a long time, 
or whether they're judges whose reputation he knows but who he has 
not yet really met.
	     
	     MR. GERGEN:   Joel, you might describe just for a minute 
-- there was some effort after the last selection in the Counsel's 
Office to begin pulling together more information on various 
candidates.
	     
	     MR. KLEIN:  Articles, opinions, analyses of various 
people.  And that has been an ongoing process.  
	     
	     Q    You talk about the qualities that you look for.  In 
the post-Bork climate of confirmation, do you have to be careful or 
very conscious of avoiding someone who has written an article or 
issued an opinion that might serve as kind of lighting rod that could 
give you confirmation difficulties, even if in the larger sense of 
things it's not something you would be concerned about?
	     
	     MR. CUTLER:  Well, it is certainly true that people who 
have written and debated frankly, especially scholars, have a lot to 
deal with when they come up for confirmation.  But on the other hand, 
your ideal candidate is not someone who has written nothing and can 
therefore not be challenged.  You don't want a cord of nine 
milquetoasts, or nine blank ciphers, or nine ordinary lawyers.  You 
want people who have minds, who speak out.  So you have to balance 
that.
	     
	     MR. GERGEN:  We've asked Mr. Cutler if he's available --  
(Laughter.)
	     
	     MR. CUTLER:  I'll be glad to take one term.  (Laughter.)
	     
	     THE PRESS:  Thank you very much.

				 END5:10 P.M. EDT

