Justice made easy


THE president of the United States has a good deal to do this spring before he gets around to what will likely be the summer announcement of a nominee for the Supreme Court. He may not have decided yet who will get the job, but the question of how that person will be selected should be much on his mind.

And guidance will surely come in the lessons of recent history. From the public humiliation of the conservative ideologue jurist Robert Bork, to the empty questioning of David Souter, to the evasions and obfuscations of Clarence Thomas, the president can figure out what not to do.

To wit: no rads, no stealths, no unqualified guys with paper trails they're prepared to disavow to snag the seat.

The good news is that the president need resort to none of the above. Looking across America, any student of the judiciary can see many qualified candidates who have been passed over during the last 12 years because they were not conservatively correct enough.

The most talked about is Gov. Mario Cuomo, whose learned monologues define the term continuing education. The idea of putting Governor Cuomo and Justice Antonin Scalia in a room together and having them duke it out from opposite ends of the ideological spectrum is entertaining, not because of their common ethnic and social background but because of the similar rigor of their intellects. If the world is full of those who do not suffer fools gladly, these two do not suffer them at all.

But Mr. Cuomo would bring much more than Scalia counterweight to the court. He is a brilliant rhetorician precisely because he understands and can capture the sweep of history, the pith of the big picture, the promise implicit in democracy.

But Mr. Clinton has terrific choices among the judiciary as well. The most obvious is Judge Patricia M. Wald, who has served on the U.S. Appeals Court in Washington since 1979. She is one of those many Carter administration appointees to the bench who have grown in experience and stature as they have been passed over during Republican administrations. If President Clinton is inclined to make the court look more like America, that pool contains qualified candidates who are female, black, or both.

But the president has to make sure that he doesn't make some knee-jerk mistakes. He can't be ageist. Mr. Clinton should avoid the obvious temptation, amply indulged by George Bush in his selection of Clarence Thomas, to choose a young candidate in order to influence the court for the next 40 years. Judge Wald is 64, which would put her in good company: Justices appointed after age 60 include Harry Blackmun, Benjamin Cardozo and Oliver Wendell Holmes.

And Mr. Clinton cannot be scared off by all this litmus-test bluster emanating from senators who want to be saved the political consequences of the confirmation process. During recent hearings, judges have been asked about a number of issues that would surface during their tenure on the high court. No one screams litmus if they are questioned closely on the rules of evidence. Litmus is code for abortion.

Let the president ask. Let the Senate question. Let the nominee answer as the nominee sees fit. Judges are not ciphers; we have simply gotten used to the conceit that on this single issue, they should pretend to be. Let the pretense end. It is most unlikely that, choosing among fairly like-minded liberals, the president would choose one who does not believe in the privacy rights that are the underpinnings of Roe vs. Wade. Why play this foolish game?

Sometime this summer the president will make the first of what may be several appointments to the court. And he will do it before a nation that has witnessed a series of quite cynical confirmation processes in recent years.

This time, the members of the Senate should have something, someone, to vote on. No stealth, no subterfuge. No nomination doomed to failure. Luckily, none of these are necessary. The gene pool is impressive. And Mr. Clinton has a clear opportunity to use the ultimate litmus test: experience and intellect.

Anna Quindlen is a columnist for the New York Times.

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