Ginsburg, Obama and the Lunch That Could Have Altered Supreme Court History

When Justice Ruth Bader Ginsburg joined President Barack Obama for lunch in his private dining room in July 2013, the White House sought to keep the event quiet — the meeting called for discretion.

Mr. Obama had asked his White House counsel, Kathryn Ruemmler, to set up the lunch so he could build a closer rapport with the justice, according to two people briefed on the conversation. Treading cautiously, he did not directly bring up the subject of retirement to Justice Ginsburg, at 80 the Supreme Court’s oldest member and a two-time cancer patient.

He did, however, raise the looming 2014 midterm elections and how Democrats might lose control of the Senate. Implicit in that conversation was the concern motivating his lunch invitation — the possibility that if the Senate flipped, he would lose a chance to appoint a younger, liberal judge who could hold on to the seat for decades.

But the effort did not work, just as an earlier attempt by Senator Patrick Leahy, the Vermont Democrat who was then Judiciary Committee chairman, had failed. Justice Ginsburg left Mr. Obama with the clear impression that she was committed to continuing her work on the court, according to those briefed.

President Trump’s first White House counsel, Donald McGahn II, the primary architect of the administration’s success in reshaping the judiciary, helped ease the way for Justice Anthony Kennedy’s retirement in 2018, which allowed Mr. Trump and a Republican-controlled Senate to lock down his seat for another generation.

“The O’Connor episode reflects the sensitivity that justices can exhibit toward pressure from the outside about how the Court runs,” Mr. Bauer said, including showing “resistance to any questions about how long they serve.” He added, “White Houses are typically mindful of all this.”

Resistance aside, Democrats outside the White House also strategized about how to raise the topic of retirement with Justice Ginsburg. Several senior White House staff members say they heard word that Senator Leahy had gingerly approached the subject with her several years before the Obama lunch.

He was then the chairman of the Senate Judiciary Committee, which oversees Supreme Court nominations; he also had a warm relationship with Justice Ginsburg, a bond forged over their shared enjoyment of opera and visits to the Kennedy Center. Asked through a spokesman for comment, Mr. Leahy did not respond.

One of the former Obama administration staff members who heard discussion of the roundabout outreach by Mr. Leahy was Rob Nabors, who served in a series of White House policy and legislative affairs positions under Mr. Obama from 2009 to 2014. But Mr. Nabors said he recalled hearing that “it wasn’t clear that the message was entirely transmitted effectively, or that it was received in the manner it was delivered.”

While Mr. Obama’s own talk with the justice was tactful, changing conditions should have made his implicit agenda clear, according to the two people briefed about the meeting, who spoke only on condition of anonymity given the sensitivity of the topic. Democrats were worried about the prospect of losing the Senate. And the president had invited no other justices to lunch.

But the failure of that conversation convinced the Obama team that it was pointless to try to talk to her of departure. The next summer, when another Supreme Court term closed without a retirement announcement from her, the administration did not try again.

Neil Eggleston, who became White House counsel in April 2014, said that he did not remember anyone proposing that another attempt to ease Justice Ginsburg toward resignation would do any good.

“I think it is largely not done,” he said. “Suggesting that to a Supreme Court justice — she is as smart as anyone; she doesn’t need the president to tell her how old she is and what her timelines are.”

Given his previous tenure as chief counsel to the Judiciary Committee, Justice Stephen Breyer might have been a more pragmatic target of overtures. Walter Dellinger, a former solicitor general, mentioned to the White House counsel’s office during the Obama administration a plan he conceived to motivate Justice Breyer, a known Francophile, to start a next chapter.

“My suggestion was that the president have Breyer to lunch and say to him, ‘I believe historians will someday say the three greatest American ambassadors to France were Benjamin Franklin, Thomas Jefferson and Stephen G. Breyer,’” recalled Mr. Dellinger, who recently joined Vice President Joseph R. Biden Jr.’s campaign team.

Although it is not clear how, word of Mr. Dellinger’s idea made its way to Justice Breyer.

Mr. Dellinger said that when he ran into Justice Breyer at a holiday party not long after Mr. Trump was elected, the justice pulled him aside. “So Walter,” he asked, “do you still want to ship me off to France?” Mr. Dellinger, who sensed the justice was ribbing him, responded, “Mr. Justice, I hear Paris isn’t what it used to be.”

Mr. Dellinger added that he now thought Justice Breyer was correct to resist the idea, saying “he has made a tremendous contribution in the ensuing years.” Justice Breyer’s office declined to comment.

In making that suggestion to lure Justice Breyer with an ambassador position, Mr. Dellinger was harking back to similar ideas from Lyndon B. Johnson, a master strategist. Mr. Johnson lured Justice Arthur Goldberg, whom he wanted to replace with his friend Abe Fortas, off the court by offering him the role of ambassador to the United Nations, saying that he would have tremendous power in negotiating the end of the Vietnam War.

Justice Goldberg never did have that authority and regretted his decision. “I asked Goldberg, why did you leave the bench?” said Laura Kalman, professor of history at the University of California at Santa Barbara. He answered her in one word: “Vanity.”

President Johnson also played on the paternal pride of the Supreme Court Justice Tom C. Clark, by appointing his son, Ramsey Clark, attorney general in March 1967. Johnson, who wanted to replace Justice Clark with Thurgood Marshall, played up the notion that his continued presence on the court while his son ran the Justice Department created a conflict of interest, and Justice Clark stepped down that June.

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