A moment to reflect on the magnificence of sage counsel.
The death Sunday of Bernard Nussbaum, coming at a time when our country seems in want of wisdom, is a moment to reflect on the magnificence of sage counsel. Nussbaum rose from an immigrant family of garment workers in New York to become White House counsel to President Clinton. In a moment of weakness amid a gathering scandal, the president fired him. Nussbaum had warned Mr. Clinton against appointing an independent counsel.
Mr. Clinton’s decision to fire Nussbaum was met with “approval, even glee, in Washington,” the Forward, which we were editing at the time, noted in an editorial called “Clinton Without Counsel.” It happened that the Forward was read by Nussbaum’s mother. Mr. Clinton’s enemies didn’t want him to have a good lawyer, the Forward said. They wanted him to be bereft of counsel. Which is precisely why they went after Nussbaum in the first place.
That editorial, issued in 1994, taught us something — that we found more satisfaction in defending those who’d been knocked down than in attacking those who’d stood up. It led to one of the friendships we’ve cherished most over our newspaper years. We ended up having lunch with Nussbaum every six months or so since then. He was full of advice on the ups and downs of life and politics, always offered in a warm spirit.
Nussbaum had become White House counsel in part by dint of his friendship with Hillary Rodham, who, in the 1970s, worked for him in the inquiry that led the House Judiciary Committee to issue a bill of impeachment against President Nixon. To the end of his days, Nussbaum was proud of that work, the rigor of which is, we speculate, one of the reasons Nixon resigned the presidency instead of standing trial in the Senate.
It was Hillary Clinton who caused her husband to bring in Nussbaum as White House counsel — though his record as a lawyer with Wachtell, Lipton spoke for itself. In 2004 he won from a jury a multi-billion dollar judgment in the World Trade Center insurance case. Yet his most astonishing victory, at least to us, was in representing the chief judge of New York’s highest court, Judith Kaye, in her lawsuit against the governor and legislature for a raise.
Kaye’s lawsuit is one of the most amazing cases in American law. The Sun had urged Nussbaum to focus on the Constitution’s diminishment clause, which prohibits diminishing a judge’s pay. He could have made inflation unconstitutional, we argued. Yet Nussbaum focused on separated powers, arguing that the governor and legislature were hampering the judicial branch. He won — and told us that if he’d relied on our inflation argument, he’d have lost.
Nussbaum was as shrewd an observer of politics as he was of the law. He was disappointed, to put it mildly, by our defense of President Trump, though he understood how the Democrats had disappointed blue-collar working Americans. Nussbaum was also disappointed in how the Democrats had edged away from Israel. He remained, in our conversations, a loyal Democrat and Clinton admirer, both of Hillary and Bill.
The last time we saw him was in Connecticut, where he had a home on the Sound. His second wife, Nancy Kuhn, had died a few days earlier. He’d lost his first wife, Toby, to cancer, too. The house was empty, but we had a warm meal together. He told us that President Clinton had called him at one point and said that Nussbaum was right about the independent counsel. We like the way Nussbaum’s mother, Molly, put it to the Forward as impeachment was looming for Mr. Clinton. “They should have listened to my Bernie,” she said.