Portia Faces Life: Why Riley twice rejected offers to be U.S. Supreme Court justice

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By RUTH CUPP, Special to Lawyers Weekly

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“‘Mr. Secretary, you have a call from the president.’ I picked up the phone to hear, ‘Mr. Secretary, please hold for President (William J.) Clinton,'” recalls Richard W. Riley, a member of the S.C. Bar, former S.C. governor (1979-87) and then-U.S. Secretary of Education. It was the spring of 1993.

“Dick,” said President Clinton, “(Justice Byron) ‘Whizzer’ White has submitted his resignation. I want to nominate you to serve on the United States Supreme Court.”

Riley told Clinton that he was shocked at this, especially since he had never been a judge. Further, Riley had decided long ago that his public service could best be filled as a leader in the legislative and executive branches of government, where he could help the people move forward on issues that were important to them, the state and the nation.

He asked President Clinton for a day to think about the flattering offer.

Bill Clinton and Dick Riley had been elected governor of Arkansas and South Carolina, respectively, on the same year and day, and both were committed to be education governors. Clinton and Riley and their wives became good friends, visiting back and forth between Columbia, Little Rock and elsewhere.

After his election as president, Clinton immediately asked Riley to chair his transition team that helped him select all sub-cabinet appointees. It was an enormous job, with the receipt of more than 3,000 résumés per day to be considered for about 1,500 positions that needed to be filled in just 10 weeks or so. Then Clinton asked Riley to be his secretary of education, and Riley was confirmed unanimously by the Senate on Jan. 21, 1993, the day following the president’s inauguration.

In considering the opportunity to serve on the U.S. Supreme Court, Riley discussed the matter with his father, Ted Riley, a lifelong attorney also of the Greenville Bar. In his 90s and still practicing, Ted Riley thought that such an appointment would be the epitome of any lawyer’s career. He urged his son to accept.

Riley also discussed the matter with his dear friend and law partner, Claude Scarborough, who concurred wholeheartedly with “Mr. Ted,” as Dick’s father was affectionately known throughout South Carolina and beyond.

Shortly after the president’s call, White House Counsel Bernard W. Nussbaum and other White House officials met for about two hours with Riley in his Department of Education office in an effort to convince him to accept the nomination.

A number of others, including Secretary of State Warren Christopher, urged him to accept. Sen. J. Strom Thurmond wrote to the president in support of Riley’s appointment. Then-Sen. Joe Biden, Chair of the Senate Judiciary Committee, firmly endorsed Riley’s nomination.

Riley’s wife, “Tunky,” on the other hand, urged him to serve where he thought he could do the most good.  

Secretary Riley turned down the appointment. He reasoned that he could best serve President Clinton and the American people by remaining as secretary of education.

“I had worked hard to get the Department of Education organized and mobilized. The Republicans had wanted to abolish it. I had been successful at getting highly respected education leaders from all across the country to come to the department to serve with me. I was so pleased at how the department was shaping up, both in terms of the appointed leadership and the career staff. Education policy was my first love and I felt I could make a greater contribution to the nation by leading efforts to improve teaching and learning than I could on the Supreme Court.”

Ruth Bader Ginsburg accepted the appointment. Clinton was impressed with Ginsburg’s statement: “The greatest figures of the American judiciary have been independent-thinking individuals willing to listen and to learn. They have exhibited a readiness to reexamine their own premises, liberal or conservative, as thoroughly as those of others.”

In the spring of 1994, President Clinton accepted the resignation of Justice Harry Blackmun. The White House chief of staff  was putting together a list of potential nominees for the president to consider. He called Riley to ask if he had changed his position from the year before. Riley responded that his thinking remained the same – he believed he could best serve the administration and the nation as secretary of education.

The day after President Clinton’s election to a second term, a thousand or more Clinton appointees gathered on the South Lawn of the White House to greet the newly reelected president and vice president. As they waited, Dick Riley heard his name called out over the loudspeaker to “come into the White House.”

Tunky Riley went with him and waited in the Green Room, while Dick was ushered into a conference room just off of the Oval Office. Present in that room were President Clinton, first lady Hillary Clinton and then-Chief of Staff Leon Panetta, who was retiring from that job. Our Dick Riley was offered the position of the president’s chief of staff, considered by many to be the second most powerful position in the United States.

Another S.C. attorney, Philip Lader, who earlier had been President Clinton’s deputy chief of staff, once described the position “as catching hot javelins 14 hours a day.” Not ever to be daunted by a worthy challenge, Dick Riley nonetheless turned down the offer, as he remained convinced that he could be of more value to the president and the public as the nation’s education leader.

Had Mr. Secretary Riley accepted the appointment to the U.S. Supreme Court, he would have been South Carolina’s fourth associate justice to sit on that august body.

President George Washington appointed S.C. lawyer John Rutledge to be one of the first senior associate justices of the Supreme Court in September 1789. He resigned in 1791 to be the first chief justice of this state. Then in July of 1795, he was appointed chief justice of the United States and served five months.

He was not confirmed in December of 1795 because he disagreed with the position of Federalists on the Jay Treaty and he was not in good health.

President Thomas Jefferson appointed Charleston’s William Johnson Jr. to the U.S. Supreme Court in 1804, upon which bench he sat until his death in 1834.

President Franklin Roosevelt appointed James F. Byrnes to be an associate justice of the U.S. Supreme Court in 1942, and he served one year.

Editor’s note: Cupp began practicing law in 1954. She served in the S.C. House of Representatives and was an associate judge in the Charleston County Probate Court. She writes nonfiction about the legal profession.