THE RETIREMENT of Justice Harry Blackmun raises an interesting question. Should a chief executive nominate his wife to a high government post?
No, no, no! Not what you think! Bill Clinton is not going to nominate Hillary Rodham Clinton to the Supreme Court. Were he to propose it, her response would be, "What? Are you shtoopid or something? You think I wanna answer questions under oath from the Republicans on the Judiciary Committee?"
No, the possibility of a husband and wife deal in this case would arise if Clinton names Sen. George Mitchell of Maine to replace Blackmun. Mitchell would have to resign from the Senate before Election Day. Maine's Election Code says "within a reasonable time after the vacancy occurs, the governor shall appoint a qualified person to fill the vacancy until a successor is elected."
Gov. John McKernan Jr. is a Republican. The Republican Party has already chosen its nominee for the 1994 Senate contest. She is Rep. Olympia Snowe, who is also Mrs. John McKernan Jr. The governor could make her the incumbent.
I think Senator Mitchell would make a great justice. As I wrote here last year when Justice Byron White retired, "George would be perfect. He's a liberal, a former federal judge and a member of an ethnic group never before represented on the court: Arab-American."
He might be a first of another kind. My fact-checker is on vacation, so I may be wrong, but I don't believe a justice (at least in modern times) has served on the Supreme Court under a chief justice whose confirmation he voted against. Mitchell voted against William Rehnquist. So did two other senators said to be potential nominees: Pat Leahy of Vermont and Joe Biden of Delaware, both of the Judiciary Committee.
I think either of them would be a pretty good justice. The court really needs a legislator. I strongly agree with Senator Leahy that the time has come to "go outside the judicial monastery" and get a nominee who would give the court "additional insight." The high court has become a sort of cloister -- eight of the present justices were judges before his or her appointment to the Supreme Court; seven of them were on the U.S. courts of appeals.
Black liberal Democrats want Clinton to name one of theirs to the court. They hate the fact that Clarence Thomas is the most elevated, celebrated black lawyer in America. They want a counterweight. Maybe Lani Guinier is do-able, now that even a Republican judge like Joe Young of the U.S. District Court here has endorsed her cockamamie cumulative voting idea. More likely is Drew Days III, the solicitor general.
If Clinton sticks to tradition and nominates a federal appellate judge, it should be Richard Arnold of Little Rock. He's said to be high on the list. He's just what Americans want more of in Washington: Yale man, former governor's aide, Clinton pal, small town Arkansas lawyer. He lacks experience at the Rose Law Firm, but nobody's perfect.