One Steps Down. Who Steps Up?

By Richard Lacayo

Even before Supreme Court Justice Harry Blackmun announced his retirement last week, Bill Clinton was thinking about who would replace him. Not long after the start of the court's present term in October, Blackmun confided to the President that it would probably be his last. For those who did not get advance word, the imminent departure of the 85-year-old Justice was predictable from his passionate dissent on a death-penalty case in February. When he declared his categorical opposition to "the machinery of death," it was in the valedictory tone of a man writing with one eye on history and one foot out the door.

With Blackmun's departure, the court loses the man who is by most measures its most liberal member. And by one measure, as the author of the abortion- rights ruling, Roe v. Wade, also its most controversial one. The President has promised that any of his Supreme Court appointees will support abortion rights, but Clinton shows no inclination to provoke Republicans by appointing a red-hot liberal such as Harvard law professor Laurence Tribe. A room- temperature nominee is more what he has in mind for a court where power frequently rests with four or five moderate conservatives at the center and where some of the most contentious issues, abortion and church-state relations among them, have settled into a grumpy stalemate.

Though the White House quickly leaked a diverse list of potential choices, retiring Senate majority leader George Mitchell was the early front runner. A U.S. Attorney and a federal judge before becoming a Senator in 1980, Mitchell is popular with both parties on Capitol Hill. For a President looking for an easy confirmation, who could be better than a man who gets an occasional smile from Jesse Helms?

"Mitchell is Clinton's favorite in the true sense of the word," said an Administration official, who added, "but there are extenuating circumstances." The most serious of those circumstances is that Clinton needs Mitchell to shepherd his health-care plan through the Senate. The White House is adamant that he continue as a deal-making party leader until health reform is passed, even if that means delaying confirmation hearings until after the first Monday in October. Another problem is whether Mitchell, who voted in 1990 to raise the pay of Supreme Court Associate Justices from $118,600 to $153,600, can sidestep the Constitution's emoluments clause, which prohibits members of Congress from being appointed to a position for which they have recently voted a pay raise. The White House is confident he can get around that one by accepting the court's earlier pay scale.

Though Clinton is anxious not to repeat the spectacle of last year's 13-week search for someone to replace Byron White, which left the road to the high bench littered with bruised rejects, White House officials took pains to deny that their focus had narrowed to Mitchell. But few other names on the Administration's short list seemed likely. Interior Secretary Bruce Babbitt was quick to say he didn't want the job. Federal appeals court Judge Richard Arnold has the post-Whitewater disadvantage of being a Friend of Bill's from Arkansas. The most serious second contender is Jose Cabranes, a Puerto Rican- born federal district judge in Connecticut who would be the first Latino to serve on the court. While Clinton could win some advantage with Hispanic voters by choosing Cabranes, his record on the bench is so moderate that he was also on George Bush's list of potential nominees. Though Cabranes has spoken sympathetically about the concerns of women and gays, Clinton would have to be thoroughly convinced that the judge is not a closet conservative in order to avoid repeating, in mirror image, the famous mistake of Dwight Eisenhower. The Republican President decided it would help him win the 1956 election if he gave a court seat to an Irish Catholic: William Brennan, who turned out to be one of the century's most effective court liberals.

Whoever follows Blackmun will find a court in which the sharp divisions of 10 years ago have subsided for now and the ideological direction is hard to discern. The centrist bloc that has emerged includes Anthony Kennedy, Sandra Day O'Connor, David Souter and probably the most recent new Justice, Ruth Bader Ginsburg. She is almost certainly a supporter of abortion rights. Since she replaced Byron White, an opponent, the court majority to uphold Roe v. Wade appears secure for now.

Even when the Justices have voted together in recent cases, however, they have been more given to writing separate opinions -- a sign that no one is . pulling like-thinking members into line. One important factor in favor of Mitchell is his Capitol Hill reputation as a consensus builder who might be able to fashion rulings that would attract the centrist jurors. Some of the skills of Senate horse trading -- "you get my vote on bill A for your vote on bill B" -- are of no use, though, in building alliances at the court, where Justices attract support by shaping decisions to neutralize the doubts of wavering allies."Ideas are the coin of the realm, not trades," says Yale law professor Akhil Amar.

Whatever talents Mitchell may have as a conciliator, it is too soon to tell whether he can guide the court to new alignments on the most divisive issues coming its way, including gays in the military, the right to die and how to adjust the line between church and state. And after those? For Presidents, the most intractable problem of choosing court nominees is that no one can predict what issues will grip the court in years to come. Abraham Lincoln put five men on the court, all chosen to support his policies during the Civil War. All of them did. But after his death, some of them were still serving on the court when a rapidly industrializing nation was caught up in unforeseen battles concerning the rights of labor and the power of states to regulate businesses.

Among the issues that may face future Justices, many conservatives argue that the "takings" clause of the Fifth Amendment is ripe for swift attention to protect property owners from such government restraints as zoning laws and environmental regulations that reduce the value of their property without compensation. The information highway promises multiple collisions between intellectual-property rights and the free-expression rights of those who would use the data they find there. And the potential of genetic testing to detect a predisposition to illness or undesirable behavior will challenge the privacy rights of all Americans. Any of those issues could consume the court years from now -- or sooner. At Justice Blackmun's Senate confirmation hearings in 1970 -- just three years before he wrote Roe v. Wade -- no one asked him about abortion.

With reporting by Michael Duffy and J.F.O. McAllister/Washington