Round three on high court choice. Nominations show lack of unity in White House
Washington — This week, the Reagan White House will gamely put on its best face and parade its latest Supreme Court nominee before the inquiring hordes on Capitol Hill. For the third time, the administration will try to win the Senate's assent to a conservative whose appointment is likely to shift the philosophical balance on the high court. For the third time, the nominee's personal and professional history will be the object of an exhaustive dissection by the press.
And this time, the administration desperately hopes, there will be no slip-ups.
The effort to replace Supreme Court Associate Justice Lewis Powell, who retired last June, speaks volumes about the troubles besetting the Reagan administration in its twilight years. Indeed, a battle is being waged over the final direction of the Reagan presidency, and the Supreme Court has been caught in its cross-fire.
On one side are orthodox conservatives, represented most forcefully in the administration by Attorney General Edwin Meese III. With time running out on the Reagan presidency, they believe the courts offer the best hope of implementing the agenda Congress has refused to consider.
President Reagan has already appointed more than half of the nation's federal judges, most of them conservatives. Additionally, he has appointed two conservative associate justices to the Supreme Court and elevated a conservative to the chief justice position. But the high court conservatives are still one vote short of a majority. And on the issues that matter most to the foot- soldiers of the New Right - abortion and school prayer, for instance - the court still votes the wrong way.
Enter the moderate pragmatists led by White House chief of staff Howard Baker. Their central interest lies in conserving and rationing what political clout President Reagan still enjoys.
Consequently Mr. Baker and his allies in the administration have not wanted to anoint a die-hard conservative to the Supreme Court because the ensuing confirmation battle in the Senate would certainly be costly and might well be unwinable.
It was the conservatives who lined up four-square behind Judge Robert Bork, the Chicago-school theorist and Yale professor who, for years, had sharpened the cutting edge of conservative legal thought. After Judge Bork's handy rejection by the Democrat-controlled Senate, Mr. Meese tapped Judge Douglas Ginsburg as the administration's next choice.
Baker objected to the selection of the young, largely untested Judge Ginsburg, in part because he believed the fact of Ginsburg's relative inexperience would serve as cannon fodder for a Democratic-led drive to defeat his candidacy. His choice was Anthony Kennedy, a considerably older, moderately conservative federal appeals court judge from California. Baker's political prestige, however, had ebbed after the Senate's rejection of Bork fed perceptions that the White House had badly botched its lobbying effort on his behalf.
In a Oval Office meeting just two weeks ago, Meese prevailed and convinced Reagan to nominate Ginsburg. ``Meese wants to lead the charge up San Juan Hill,'' says one conservative White House staff member. ``There are a lot of people around here who have been looking for a way to recapture the excitement of the old days.''
In fact, the Reagan administration has been on the retreat for the last year, groping for a way to recapture the political initiative. First, the Democrats took control of the Senate from the Republicans in last fall's elections, thus robbing President Reagan of a friendly majority on which he had come to depend. Then came the Iran-contra scandal - which called the President's credibility into question, struck a blow at his redoubtable popularity, and left his administration reeling.
Democrats sensed that the tide was pulling out on the Reagan era. No sooner had the gavel rapped the 100th Congress into session then Democratic lawmakers launched an ambitious legislative agenda that, quite deliberately, had little to do with President Reagan's wishes. Tariffs and import quotas, arms control measures, new taxes - if it was anathema to the President, the Democrats seemed to have a bill in the works that would write it into law.
While the administration has fought off the advancing Democrats, it has had to deal with increasing disaffection among the President's erstwhile allies on the political right. Already disturbed by the President's failure to transform their social agenda into legislative priorities, some of them have begun to suspect his conservative credentials in the wake of his diplomatic initiatives with the Soviet Union.
The appointment of a true conservative to the Supreme Court, then, was viewed by administration conservatives as the best way to recapture political initiative, and restore support among conservatives around the country. But the administration was so eager to quickly appoint another nominee in Bork's wake, that it set itself up for an embarrassment.
``I think you ought to reevaluate the process by which potential nominees are evaluated,'' said Sen. Howell Heflin (D) of Alabama yesterday on ABC News' ``This Week with David Brinkley.'' To prevent such ``screwball'' incidents from occurring in the future, Senator Heflin continued, the administration ought to take more time in weighing the qualifications of a nominee.
The Justice Department never asked Ginsburg whether he had illegally used any controlled substances, such as marijuana, despite a policy of asking department employees such questions. President Reagan himself had met Ginsburg only 30 minutes before announcing his nomination.
As Ginsburg's name was chosen, so was it withdrawn, some observers charge. Several Republican and Democratic senators say the White House reacted too hastily when it withdrew his candidacy after it was revealed that Ginsburg had used marijuana as a student and a Harvard law professor.
Senator Patrick Leahy (D) of Vermont, a member of the Senate Judiciary Committee, believes the Senate would not have rejected Ginsburg on the basis of intermittent drug use, since disavowed, 10 years ago. ``The White House galloped into the nomination, got into trouble, panicked, and galloped right out again,'' Senator Leahy said yesterday on CBS News' ``Face the Nation.''
At this writing, the lead candidate for the nomination is Judge Kennedy, with whom administration officials are already somewhat familiar. He reportedly has some 400 decisions to his name - a more modest corpus than Bork's and a far greater one than Ginsburg's. The common perception is that Kennedy is more of a judicial technician then a theoretician and, hence, will prove less controversial than Bork.
The administration needs less controversy. Senate Republicans say there is no reason why Senate Judiciary Committee hearings on the new nominee cannot begin during the second week of December, the time when Ginsburg's hearings were scheduled. A few Democrats talk, however, of holding the hearings after the first of the year.
That sort of talk worries the White House. If the Senate confirmation process officially gets underway in January, election-year politicking could intrude. If the next nomination is rejected, the very real prospect exists that President Reagan would be denied the opportunity of seating a conservative on the Supreme Court.