Clinton Finds Nominations Just Got Tougher
Trouble over recent candidates signals a shift in the rules of the game for capital duels
WASHINGTON — ONLY Bill Clinton knows how great a role Social Security taxes for a part-time housekeeper played in the passing over of Judge Stephen Breyer for the Supreme Court.
White House officials say Mr. Breyer's failure to pay these taxes was a factor, but not "the" factor in the decision.
Even so, the matter shows how fine a screen of scrutiny otherwise stainless candidates must pass through to reach prominent government positions.
From Zoe Baird's household hiring practices to the footnotes of Lani Guinier's law review articles, the Clinton White House has been blindsided a few more times than usual by problems it had overlooked or underestimated.
"The level of intensity has never been ... as high" in the politics of nominations, says Calvin MacKenzie, an expert on White House appointments at Colby College in Waterville, Maine.
Charges of ethics violations, especially in the process of confirming nominees to high office, "is the modern form of dueling," says a former official from the Bush administration.
The charges themselves are usually a mere pretext, a handy weapon, in a battle over who gets a job, the Bush official says.
Ms. Baird had a more substantial problem than some fallen aspirants who followed her - both from hiring an illegal alien couple and in not paying Social Security taxes.
But the next heir apparent to the attorney general post, Judge Kimba Wood, hired an illegal alien when it was legal to do so. "She had done absolutely nothing wrong. It was terribly unfair to her," the Bush official says.
Breyer was caught by a tax rule that requires paying Social Security for any employee who one pays $50 or more over a period of three months.
"For someone of that caliber to be tarnished in the way that the process tarnished him was really tragic," says another Republican, lawyer Theodore Olson. "We've examined people through a microscope where no person could withstand that sort of scrutiny." Nonpartisan standard
A potential nominee for deputy attorney general, Charles Ruff, was dropped in March over the same issue raised with Breyer.
"I don't know what percentage of the population would fall into this trap, but it must be enormous," Mr. Olson says. "I think Republicans and Democrats alike would like to have this one gone," since members of both parties are more or less equally at risk.
"We're reaching the point of silliness when we demand this kind of political purity," says Alan Feld, a tax law professor at Boston University.
Some people, of course, knew about and complied with these laws, which are somewhat vague in how they define employees, as distinct from independent contractors. The $50 trigger point is unusually low compared with other tax triggers. It was created to ensure that menial laborers were paid according to the Social Security system, but many people became aware of the rules only through the Baird controversy.
"Zoe Baird may help close the deficit with all the people who are scrambling to pay their back taxes," Mr. Feld says.
Household hiring is only the peccadillo of the moment. During the Bush years, nomination obstacles included heavy drinking and marijuana use.
"Every generation of appointees has its own problems, has tripped some wire," the Bush official says. After President Reagan's Supreme Court nomination of Douglas Ginsburg crashed over his earlier marijuana use, that became a tripwire for a generation that came of age during a time of casual drug experimentation. Federal Bureau of Investigation questionnaires to prospective nominees were reworded to probe for past drug use.
The Bush White House moved to put the marijuana standard down. Over several months, government officials stretched the envelope of acceptability concerning past drug use to how often and how long ago.
But for a president in a weak political position, such as Mr. Clinton, the trend is to avoid any test of boundaries that might cause a fight.
"That's a change," Dr. MacKenzie says. It comes from the "extraordinary level of scrutiny these candidates now go through." Before electronic databases gave easy access to writings and news-clip searches, no one might have read all Ms. Guinier's articles on black representation and voting rights. Philosophy at issue
The debate over her nomination as assistant attorney general for civil rights had a common trait with Judge Robert Bork's Supreme Court nomination. Both debates concerned political philosophy at the heart of the appointed work of the nominees.
When a political opponent picks up a charge of Social Security taxes or some other ethical violation, "that's not the issue," MacKenzie says.
When President Nixon appointed Harold Carswell to the Supreme Court, many thought he was a mediocre and unqualified choice. His opponents then found a film clip of Mr. Carswell making a segregationist speech as a Senate candidate in Georgia in 1948. It helped defeat him.