Mitchell leads list for Blackmun seat

WASHINGTON — WASHINGTON -- President Clinton, pausing yesterday to make an emotional tribute to retiring Supreme Court Justice Harry A. Blackmun, officially launched the process of seeking an equally distinguished successor. That won't be easy, Mr. Clinton suggested.

"Justice has not only been his title; it has been his guiding light," the president said in the Roosevelt Room as he stood beside the 85-year-old justice, the last member of the court's once-powerful liberal bloc.


He will end his 24-year career on the high court when its term ends in June.

White House officials insisted that the process of choosing a successor was just beginning. But attention immediately centered on Senate Majority Leader George J. Mitchell of Maine.


"The speculation in the Senate is that Senator Mitchell is the clear favorite," said Sen. Hank Brown, a Colorado Republican.

Another name mentioned by White House officials is federal District Judge Jose Alberto Cabranes of New Haven, Conn.

Justice Blackmun's gentlemanly ways and his habit of remembering that Supreme Court decisions affect everyday people endeared him to generations of clerks and young lawyers.

But it was his opinion in a single decision -- the 1973 Roe vs. Wade decision to legalize abortion -- that left him revered by those who believe that abortion is a fundamental constitutional right and vilified by a vocal minority who equate abortion with the killing of human beings.

Justice Blackmun, appearing shy and having difficulty hearing, said yesterday that he stood by his decision in Roe.

He also shared a laugh with the president about swapping their hate mail.

Mr. Clinton was peppered with questions about a potential successor, a topic he declined to discuss. "This should be Justice Blackmun's day," the president said.

Nonetheless, the full power of the White House machinery was put into gear to find a successor.


White House counsel Lloyd N. Cutler, head of the selection team, said that 10 to 12 names will be considered. He declined to name names but didn't hide that Mr. Mitchell was under consideration.

'Not foregone conclusion'

"It is not a foregone conclusion," he warned. "This is not a perfunctory process. It's a serious inquiry into who would be the best person."

Mr. Cutler said that he hoped the process would be faster than the 87-day search that ended with the selection of Ruth Bader Ginsburg as Mr. Clinton's first Supreme Court appointee.

He also said he hoped the White House could control its leaks to spare embarrassing the candidates. Last time, he noted, federal appellate Judge Stephen G. Breyer's name was disclosed by the White House as the top choice, only to be dropped just before Justice Ginsburg was nominated.

Unlike Judge Breyer, Mr. Mitchell is a known quantity, both to the nation and to Mr. Clinton.


The civil rights community likes him, and he has experience in the Senate as a consensus-builder. Mr. Mitchell would almost certainly be easily confirmed by the Senate.

On March 4, when it was learned that Mr. Mitchell had decided not to seek re-election to his Maine Senate seat, Mr. Clinton touted his "incredible persistence and patience and strength."

Mr. Mitchell, 60, is a former federal prosecutor and a federal judge. He also brings a national political stature that some of the great justices of the past already possessed when they were named to the bench.

Reviving tradition

Mr. Clinton has ruminated about reviving this tradition, thus moving away from the recent trend to appoint relatively obscure appellate judges to the high court.

Mr. Mitchell has also been mentioned as a possible commissioner for Major League Baseball.


Yesterday in Maine, the senator said that he was "flattered" but that neither job had been offered to him.

One possible drawback is that the administration is counting on Mr. Mitchell to shepherd health care reform through the Senate late this summer.

"That adds a wrinkle to it," said one White House official. "But I don't think it's prohibitive."

William L. Taylor, a Washington civil rights lawyer, said: "I have to tell you -- Mitchell makes eminent good sense in so many ways."

Mr. Clinton and his advisers have a set of complex and competing goals of what they would like to accomplish with this choice, including:

* Avoiding the circus atmosphere that accompanied the president's agonizing over his first Supreme Court appointment. took Mr. Clinton 12 weeks to nominate Justice Ginsburg.


* Avoiding a divisive Senate confirmation battle.

This would tend to favor Mr. Mitchell or those already confirme by the Senate, such as Interior Secretary Bruce E. Babbitt.

It militates against a staunch liberal, such as Laurence Tribe, the Harvard law professor, because Senate Republicans are still smarting over the treatment given to Clarence Thomas and Robert H. Bork, two GOP nominees

* Striking ideological balance. Besides being the author of the decision legalizing abortion, Justice Blackmun has also become an opponent of capital punishment in all cases. But Mr. Clinton's own ideology leads him to favor the legality of abortions and of capital punishment.

* Paying heed to the nation's changing demographics. The court has one Jewish justice, one black and two women. The only black member is Justice Thomas, a conservative Republican.

But the most vocal pressure may come from Hispanic groups, who say it is high time for them to be represented. Polls suggest that this minority, the nation's fastest-growing, is slipping away from its Democratic moorings and becoming Republican.


Hispanic civil rights groups are already pushing the names of several possible candidates.

Other names believed to be under consideration include Mr. Babbitt, Attorney General Janet Reno, and Solicitor General Drew S. Days III.

Babbitt doesn't want it

Mr. Babbitt said yesterday that he did not want the nomination, saying: "I very much want to stay put" as interior secretary.

One intriguing name mentioned by a Democrat with close White House ties is Stephen Carter, Yale's first black tenured law professor.

Conservatives might be divided about him: Mr. Carter has written an introduction to a book by Lani Guinier, a liberal Clinton family friend-turned-foe. But the Yale professor also has written a provocative book criticizing the nation's liberal establishment for trying, he says, to virtually ban religion from American public discourse.


The president recently quoted from this book, underscoring his admiration for legal scholars who look for a higher meaning in the law.

For example, in his tribute to Justice Blackmun yesterday, the president didn't quote from one of the justice's famous majority opinions but from a decision in which Justice Blackmun was on the losing side.

In that case, the court ruled that 4-year-old Joshua DeShaney and his mother had no constitutional right to sue in federal court after Wisconsin social workers returned him to the home of his violent father, whose subsequent beatings left the boy brain-damaged.

The president read from Justice Blackmun's passionate dissent: "What is required of us is moral ambition. Poor Joshua! It is a sad commentary upon American life and constitutional principles that Joshua and his mother are denied by this court the opportunity to have their rights protected."