By David Kurlander
Neera Tanden, President Biden’s nominee to head the Office of Management and Budget, has had a fraught confirmation hearing. Republican Senators have zeroed in on Tanden’s controversial Tweets, while criticism from some progressive voices over past battles with Tanden have showcased continued fissures in the Democratic Party. Meanwhile, many of Tanden’s congressional supporters have argued that gendered and racial double standards underlie the fierceness of the attacks on the nominee. The tense standoff is reminiscent of President Clinton’s failed initial attempt to appoint Zoë Baird as the first female Attorney General. The 1993 firestorm surrounding Baird’s nomination was an early blow to the incoming administration and a harbinger of changing norms around privacy and political identity.
Following Bill Clinton’s victory in November 1992, President George H.W. Bush’s Justice Department, led by Attorney General Bill Barr, sank into a scandal-stricken final two months. Perhaps foremost in the coverage at the time—but largely forgotten today—was “Iraqgate,” the assertions that Barr had helped cover up the Bush administration’s agricultural loans to Saddam Hussein, who had allegedly used the money for weapons. Barr’s shiftiness, coupled with continued fall-out from the labyrinthine offshoots of the Iran-Contra Affair, had the DOJ at a low ebb of public approval.
President-elect Clinton pledged to restore integrity to DOJ, and to government at large, with a cabinet that would “look like America.” For Barr’s successor, he initially floated Vernon Jordan, a Black man and a close ally. The press, however, seized on Jordan’s ties to Big Tobacco. Clinton then committed himself to appointing a woman, and eventually moved toward selecting Zoë Baird.
Baird, nominated at 40, was the Seattle-raised child of a labor official father and a jewelry designer mother. She cut her teeth in the Carter White House, working as Associate Counsel under the famed White House Counsel Lloyd Cutler, who became her mentor. Cutler met Baird after she wrote a powerful legal opinion arguing that handing out patronage jobs for the 1980 census was illegal. “I went over there to the Department to talk her out of it, but her argument carried the day,” Cutler remembered. Following a stint at General Electric, she became Vice President and General Counsel at Aetna, the health insurance giant, where she oversaw a massive reorganization of its legal team.
Baird traveled to Little Rock in December 1992 for vetting. She alerted another close mentor, transition head (and to-be Secretary of State) Warren Christopher, that she and her husband (a Yale Law School professor) had, in 1990, hired an undocumented Peruvian couple for live-in assistance in taking care of their 8-month-old son. Baird’s husband had consulted other attorneys about the complicated laws surrounding disclosing employment of undocumented workers. Baird was aware, however, that she was in technical violation of the law. Christopher told Clinton, but they agreed that the revelation was not a big deal.
On January 5th, 1993, Baird met with Delaware Senator Joe Biden, the Chairman of the Senate Judiciary Committee. According to a contemporaneous TIME cover story, she was “surprised by his vehemence.” When Clinton aides referred to the infraction as a “parking ticket,” a “worried” Biden responded: “It’s a freeway crash.” Biden, who “seemed to anticipate the firestorm to come,” still backed Baird’s nomination, albeit with trepidation.
The hiring leaked on January 14th, but initially just as a trickle. Incoming White House Communications Director George Stephanopoulos offered a novel explanation for the slowness of politicians and media executives to pick up the controversy in his memoir, All Too Human: “They all had housekeepers, many of them illegal, almost all with unpaid tax bills.”
By the time that Baird’s confirmation hearings began on January 19th—a day before the inauguration—Biden and the rest of the Judiciary Committee were receiving angry constituent calls. Biden set off the proceedings with a tone that New York magazine somewhat euphemistically called “stern questioning,” grilling Baird about her rationalization of the hiring and underscoring how seriously he took her transgression. “There are millions of Americans out there…with one-fiftieth the income that you and your husband have,” he told Baird. “They did not violate the law.”
The anti-Baird sentiment quickly took over right-wing media. The recently-deceased conservative radio host Rush Limbaugh argued, “She’s a good liberal! She’s doing exactly what she criticizes everyone else for doing. Just like liberals in Congress…they pass laws, they exempt themselves from them!”
Some Republican pundits, however, took another tack, attacking Democrats for not defending Baird more fiercely. The Left wing of the Democratic Party was already leery of Baird. She had taken a somewhat conservative line on one of the hot-button legal debates of the day, tort reform, praising Bush Vice President Dan Quayle’s efforts to make it more difficult for victims to bring civil suits. With this in mind, Pat Robertson, the host of the evangelical 700 Club, argued that outspokenly liberal senators (Biden included) were scared of Baird’s pro-business outlook, and thus willing to abandon her nomination: “What’s bad is that she’s a corporate attorney that is more conservative in tort reform than these radicals. And they’re looking for someone of their own stripe.”
The multi-directional criticism worked. As Clinton took his oath of office and celebrated at star-studded galas, Senators received a barrage of phone calls fiercely criticizing Baird and the Democratic coalition. “In 18 years in the Senate,” Vermont Senator Patrick Leahy told the media, “I had never seen so many telephone calls, spontaneously, in such a short period.”
As Baird’s hearings resumed on January 22nd, the first full day of the Clinton Administration, Stephanopoulos offered his press briefing debut. Reporters pounced, asking repeated questions about whether the President knew about Baird’s violation. “If we didn’t know, we’re incompetent hacks. If we did and appointed her anyway, we’re unethical elitists,” Stephanopoulos recalled thinking during the briefing. Stephanopoulos ultimately offered evasive answers and only clipped support for Baird during the presser.
By day’s end, Biden was convinced Baird’s nomination was doomed. He tried calling Clinton, who didn’t respond. Biden then laid down an ultimatum. Per TIME: “If his call was not returned, he would state his opposition to Baird’s nomination publicly.” After the hearings, Baird went to Lloyd Cutler’s office, where she huddled with her mentor and agreed to withdraw her name from consideration.
The drama over nominees hiring undocumented workers would not end with Baird. Clinton’s follow-up nominee, Judge Kimba Wood, withdrew her name after a queasy-making back-and-forth with the administration over her own (legal) history of hiring undocumented workers (someone on the Clinton staff leaked that she briefly trained to be a Playboy Bunny while in college). The next year, Secretary of Defense nominee Bobby Ray Inman dropped out—with an uncharacteristically emotional hour-long speech in which he decried “modern McCarthyism”—after his own hiring of undocumented houseworkers was unearthed.
What became known as the “Nannygate” scandal and its subsequent reverberations receded over time. Baird has led the vaunted Markle Foundation since 1998, Wood returned to the bench, and Inman has sat on myriad boards. The moral impact of the controversies, however—on working mothers, on undocumented laborers, on class antipathies, and even on now-President Biden’s role in the withdrawal—remain unsettled to this day.
The complaints against Tanden are different. But the anger of her detractors and defenders (and some would say Tanden herself) have one of their many sets of origins in January 1993. Columnist Ellen Goodman put it this way upon Baird and Wood’s withdrawals, in a column entitled “The Real Zoe Baird Problem”: “We seem to deal with character issues as if they were a grab bag. We reach in, pull out the latest one in no particular order and use it to judge anybody in public life. For a while, it’s all that we see of that person.”
For more on Clinton’s first term, read John F. Harris’ 2005 The Survivor: Bill Clinton in the White House. And to learn more about the larger confirmation process, check out Glen Krutz, Richard Fleisher, and Jon Bond’s 1998 American Political Science Review article “From Abe Fortas to Zoë Baird: Why Some Presidential Nominees Fail in the Senate.”
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