To Shift High Court His Way, Clinton Needs A Savvy `Persuader'
WASHINGTON — WITH a second Supreme Court seat to fill inside of his first two years in office, President Clinton has an early opportunity to leave his stamp on a heavily Republican-appointed court.
The only current justice appointed by a Democrat is Ruth Bader Ginsburg, Mr. Clinton's own first appointment.
Yet Clinton's choice to replace retiring Justice Harry Blackmun is not likely to shift the balance of the court in many areas of law.
The best chance Clinton has to make an impact on the direction of the court with this appointment, according to many close courtwatchers, is to nominate someone with the skill and temperament to influence other justices on what is now an often-fractured court.
This logic is leading many in Washington to retiring Senate majority leader George Mitchell of Maine as the top prospect. A former federal judge, Mr. Mitchell is leaving political life at the pinnacle of his career. He is a highly partisan figure, but his political skills took him rapidly to the top post in a highly competitive chamber.
Mitchell would also represent a safe choice for Clinton, in that winning confirmation from Mitchell's Senate colleagues would probably be a walk-through.
One catch is that Mitchell is also important to the White House effort to pass a health-care bill, which should come to a head next September. White House legal research indicates that Mitchell could go through Senate confirmation to the Supreme Court and remain majority leader until the court reopens in October.
The only problem White House strategists foresee is that a possible but unlikely challenge to Mitchell's confirmation would distract him from shepherding through health-care legislation.
For years now, the court has lacked a leader who can marshal other justices into coalitions behind opinions.
Justice Antonin Scalia, at the conservative end of the bench, is regarded as a brilliant legal mind and a dominant personality. But he is also abrasive and caustic, both in open court and in opinions, and appears to have narrowed support for his opinions rather than enlarged it.
The justice thought to be most influential with his colleagues now is unimposing, mild-mannered David Souter. Mr. Souter has become a key figure in the center bloc of the court, with Anthony Kennedy and Sandra Day O'Connor.
Since Mr. Blackmun is the most consistently liberal court member, replacing him is unlikely to move the court further to the left unless his successor is more persuasive to his colleagues - in the model of former Justice William Brennan.
``Right now, the court is still over on the conservative side,'' says Georgetown law professor and former Supreme Court clerk Mark Tushnet. But with a strong figure coming in from left of the court's center, he says, the ``moderate conservative centrist bloc'' could become a ``moderate liberal centrist bloc.''
Without Blackmun, Justices John Paul Stevens and Ms. Ginsburg are on the left end of the court, although the character of Ginsburg's votes is not well-established yet. If the next Clinton appointee joins those two votes, it will take two more for a majority on any given decision to build a liberal majority. That would mean, frequently, that two among Souter, Mr. Kennedy, and Ms. O'Connor would have to be persuaded, says Notre Dame law professor Douglas Kmiec.
Not every observer believes that Mitchell is cut out for the job. Harvard law professor and former Solicitor General Charles Fried says that the political skills Mitchell has shown are wrong for the court. ``If you put in a George Mitchell, then all you get is a vote because the man has no intellectual substance,'' says Mr. Fried, contrasting Mitchell to other Senate Democrats like Edward Kennedy of Massachusetts or Daniel Patrick Moynihan of New York.
Supreme Court justices persuade by the power of their arguments, Fried says. Professor Kmiec, too, is uncomfortable with talk of Mitchell that treats the post as ``justice as a kind of lobbyist.''
CLINTON may have a more dramatic opportunity to change the character of the court when the next justice retires, widely expected to be Chief Justice William Rehnquist. A solid conservative in ideology, Mr. Rehnquist is expected to wait out the next presidential election before stepping down, in the hope that his successor might be named by a Republican.
Blackmun may be the modern justice most associated with moving the court into the political spotlight. Earl Warren, before him, shaped an activist liberal court that changed many aspects of life and was highly controversial. But the Roe v. Wade abortion decision that Blackmun wrote in 1973 remains a hot controversy in American politics. Ever since, positions for and against Blackmun's decision have been written into national party platforms.