Clinton has a chance to stabilize and refocus the Supreme Court 

by Ted Gest, Kenneth T. Walsh, Gloria Borger, Matthew Cooper  

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        On New Year's Eve, 1992, it hit home for Bill Clinton: One day he would have to accept the resignation of one of his heroes in public life. Clinton had just been elected president and was attending the annual gabfest known as Renaissance Weekend. He joined Justice Harry Blackmun, whom he had come to know from previous Renaissance Weekends and whose judicial work he had long admired, on a panel entitled "Changing of the Guard." Blackmun told of his deep commitment to public service and how he wanted to pass the torch to a new generation. Some in the audience thought he was saying that, after two decades on the Supreme Court, he was now confident that he could retire and the new president would pick a good successor. Clinton, his eyes welling up, said that Blackmun's resignation would be one he'd have a hard time accepting.

        Last week, the moment arrived. Blackmun had apparently told Clinton at this past New Year's Renaissance session that he would retire this year, but it was not until Monday afternoon that he alerted deputy White House counsel Joel Klein. The president got the news as he settled into a box seat after tossing out the first ball at the baseball opening game in Cleveland. Clinton said he wanted to minimize speculation about successors and focus, as much as possible, on Blackmun's achievements, including the monumental impact of his landmark opinion, Roe v. Wade, which legalized abortion and radically reshaped American politics.

        Early favorite. Still, official Washington shifted quickly to the list of replacements. At the outset, at least, it was headed by soon-to-retire Senate Majority Leader George Mitchell. White House aides warned that Mitchell is by no means the guaranteed selection, but the Maine Democrat seems the early front-runner: He gets along well with Clinton, is a former judge and apparently has no closet skeletons. Clinton sees him as a "consensus builder," which the president values highly on the court. Naming Mitchell would be popular in the Democratic Party, and he appears a shoo-in for confirmation by his Senate colleagues.

        But political, philosophical or historic calculations could end up swaying the president toward another candidate. There were whispered fears among some Clinton associates that the public might be far less enthusiastic than capital insiders about the appointment of a prominent politician. Other prospects on the White House list include U.S. District Judge Jose Cabranes of Connecticut, who would be the first Hispanic on the high court; Solicitor General Drew Days, federal appeals judge Amalya Kearse of New York, respected African-American lawyers; federal appeals judge Stephen Breyer of Boston, who came close to being a nominee last year, and federal appeals judge Richard Arnold of Little Rock (whose health and ties to Clinton might raise questions). But Clinton has a track record of confounding his staff and outside handicappers when it comes to top nominations; he could easily pick someone whose name didn't register on the chattering circuit in the early days after Blackmun's announcement.

        The president will get plenty of advice on the selection. His counsel's office and a Justice Department team will weigh in, as will Chief of Staff Mack McLarty, counselor David Gergen and Deputy Chief of Staff Phil Lader, the co organizer of the Renaissance Weekends, who did his master's thesis on Franklin Roosevelt's appointments to the Supreme Court. Yet the staff role will go only so far. Bill and Hillary Clinton are lawyers who are keenly interested in the Supreme Court, and they are likely to utterly dominate the decision.

        "Largeness of ability." The president's early comments about the kind of jurist he is seeking are only partially revealing. He said after Blackmun's announcement that he was seeking someone "of genuine stature and largeness of ability and spirit." Earlier, he had pledged to nominate a person with "wide experience ... in the problems of real people, and someone with a big heart." At that point, it was a clear reference to New York Gov. Mario Cuomo. The Clintonites were not happy with the way Cuomo acted last year when he dodged and danced while they pondered White's replacement. Even so, aides say the sentiment behind Clinton's words still applies: He is seriously interested in the possibility of naming someone with political experience to the bench.

        The career path from the Capitol across the street to the Supreme Court once was well worn. Roosevelt and Harry Truman each raided Congress twice to fill high-court vacancies, and FDR choice Hugo Black's 34 years as a Justice far overshadowed his decade in the Senate. Another politician, Earl Warren, arrived from the California governor's office in 1953 to lead the court into an activist era that still largely defines American constitutional law.

        A politician with a legal pedigree could change the court in two major ways: better attuning the justices to Americans' practical problems and issuing opinions that suggest clearer solutions. Critics accuse the justices of faltering on both fronts in recent years, slashing their caseload and producing splintered, sometimes unfathomable rulings when they do act. "Hands-on experience with real-world problems is an ingredient not well represented on this court," says Attorney General Richard Blumenthal of Connecticut, who once served as a law clerk to Blackmun.

        A justice with experience in the political trenches might also bring more cohesion to a badly fractured bench. In recent years, divisive questions have tended to break the court into ideological blocs. Chief Justice William Rehnquist, Antonin Scalia and Clarence Thomas take the conservative view, and John Paul Stevens and Blackmun stake out liberal positions. That leaves a group of centrists, Sandra Day O'Connor, David Souter, Anthony Kennedy and Ruth Bader Ginsburg, to sort out the issues at hand. Constantly shifting alliances can result in several different versions of the court's reasoning, confusing lawyers, clients and the public. "A new justice capable of homogenizing different perspectives could help stabilize the court," says political scientist Joseph Kobylka of Southern Methodist University, who studies the judicial process.

        Yet the skills of political veterans who could take up residence in the Marble Palace hardly guarantee success. The delicate chemistry of philosophy and personality among the nine justices long has hampered attempts at reaching consensus. Before she joined the high court last year, Ginsburg showed the potential for becoming a coalition builder. That may still evolve, but Ginsburg's recent attempts to dominate oral-argument sessions seemed to irritate colleagues. Souter has been widely credited for taking the lead in forging a compromise that preserved the abortion-rights principle of Roe v. Wade. But it is not clear whether he will play a similar role on other subjects, and a U.S. News survey of legal experts last year gave him low marks for clear and persuasive articulation of legal doctrine.

        A new justice drawn from outside the judiciary might work to reverse another major trend, a caseload decline. The court probably will issue only 87 opinions in the term ending this summer, a 44 percent drop since 1982 and the lowest total since the 1950s. The conservative majority seemingly wants to stay away from as many issues as it can for as long as possible, leaving them to legislatures or lower courts. Because four justices must vote to hear a case, a single personnel change will not be decisive. Indeed, Clinton's best opportunity to reshape the court would occur if Rehnquist, who turns 70 this fall, steps down during his presidency. Still, this year's newcomer "might be inclined to vote for `doing justice' in more individual cases" or hearing appeals in areas like the environment and pensions that the court has largely ignored, says law Prof. Arthur Hellman of the University of Pittsburgh.

        Attention to detail. On a court that decides to hear arguments in only a tiny fraction of the appeals filed each year, Blackmun frequently supports causes that his brethren prefer to ignore. A former clerk recalls an appeal from a death-row prisoner who had been convicted of murdering a family while his accomplice's children stood by. The clerk was surprised to find a note from Blackmun asking, in "tiny, perfect handwriting, `What happened to the children?'" along with several other pages of "tiny citations and scribbled notes" about the case.

        Only years later did the court take up the issues of executing minors and accomplices to murder, but insiders credit Blackmun with helping sensitize the justices to this and other controversial issues. Although Blackmun himself never held elective office, those who know him say he embodies the kind of down-to-earth qualities that Clinton would prize in a replacement. "Blackmun reads all his mail to keep in touch with the people and the country," says Allan Gates, a former law clerk now practicing law in Little Rock. "He didn't get on the other side of the marble wall and lose the sense of why he was there."

        Despite Clinton's enthusiasm for the idea, the notion of a politician on the court is far from universally accepted. Several of this century's congressmen turned-justices compiled undistinguished records. As for Earl Warren, conservatives long have charged that he applied legislative techniques to judging, creating too much law from the bench. Abortion opponents say the flaw of that method is best illustrated by Blackmun's 1973 Roe v. Wade opinion, which divided pregnancy into three-month periods as the basis for government regulation. "The Supreme Court is not supposed to be a representative body or superlegislature," says Clarke Forsythe of Americans United for Life, the antiabortion movement's legal arm. "I fear that justices like George Mitchell would blur that distinction or eliminate it entirely."

        A Mitchell nomination would bring polite Republican questions on the proper role of judges, but confirmation would be easy. What former colleague Warren Rudman calls his "extraordinarily good legal mind," not to mention Mitchell's 14 years of good will in the Senate, would carry the day. And the transition could be managed to allow his leading the fight for Clinton's health care plan. If Mitchell joined the court, intimates predict, he quickly would discard his partisan persona. "He is a political animal now," says a friend. "He would not be a political justice." While he takes classically liberal stances as a legislator, the cautious Mitchell might prove no judicial activist reminiscent of Earl Warren.

        Other options. In the end, the 60-year-old Mitchell may conclude that private life is preferable to donning the robes of an associate justice. (Friends say that he would be more tempted if the more influential job of chief justice opens up later.) They also report that he had planned on building his bank account, possibly in a job like baseball commissioner, after 15 years of less than-lavish living on the public payroll. "Maybe George Mitchell is leaving the Senate because he wants to live a normal life for a few years," says a colleague.

        Clinton could turn to others in politics if Mitchell bows out. Bruce Babbitt, interior secretary and former Arizona governor, is a possibility. But Babbitt, embroiled in various environmental flaps, seemingly took himself out of the running last week. Clinton could call on contemporaries from his days as Arkansas governor and attorney general -- Education Secretary Richard Riley, for example -- but no obvious names immediately emerged.

        Politician or not, whoever emerges from Clinton's short list most likely will extend the Blackmun tradition. On most issues, the retiring justice "did not come in hellbent on imposing his view of right and wrong on society," says an ex-clerk, Dean Randall Bezanson of Washington and Lee University School of Law. That sort of approach coincides with Clinton's moderate "new Democrat" stance on social issues, and it could bring a bit more harmony to a sometimes disputatious court.

        THE CANDIDATES   GEORGE MITCHELL. The popular Senate Democratic leader would be a hit with pols and win easy confirmation.

        DREW DAYS. A widely respected legal thinker, the solicitor general could be the second black on the court.

        JOSE CABRANES. If this federal judge is named to the high court, he would be the first Hispanic to sit there.

        MYSTERY PERSON. Clinton likes to confound professional predictors, so the chances for a surprise nominee are high.