Cuomo Emerges as Early Favorite for Supreme Court : Judiciary: In saying he won’t make capital punishment a litmus test, Clinton has set aside his main policy split with New York’s governor.

WASHINGTON — Most listeners probably did not read much into President Clinton’s remark in an interview last week that capital punishment will not be a litmus test for his first U.S. Supreme Court appointment.

But inside the White House and among some court-watchers, observers saw more: another tantalizing hint that in the early going, New York Gov. Mario M. Cuomo has emerged as the favorite to replace retiring Justice Byron R. White.

In his comment to CBS’ “48 Hours” program, Clinton, a supporter of capital punishment, volunteered that he may have “differences” with his nominee on capital punishment. He said that such a split wouldn’t matter because the court is heavy with supporters of the death penalty.

The statement set aside the most conspicuous policy difference between Clinton and Cuomo, a strong opponent of the death penalty. And it joined other indications that--for the moment at least--Clinton’s one-time potential rival for the Democratic presidential nomination tops his short list:

--Clinton aides are known to favor an elected leader of national stature for the post, rather than one of the lesser-known jurists who have become the standard choice for the court in the last two decades.

--Aides are also expressing the view that it would be no obstacle if the candidate is in his early 60s, even though some members of Congress have argued that the choice of a younger judge is needed to lock in a liberal seat for two decades. Another candidate under serious consideration is Patricia M. Wald, a federal appeals court judge in Washington, who is 64.

--Clinton said last June that he believed Cuomo, who is 64, would make a “good Supreme Court justice.” And Cuomo seems to fit the profile that Clinton sketched out March 19 when he said that he wants a judge with a “fine mind, good judgment, wide experience in the law and the problems of real people, and someone with a big heart.”

Cuomo’s current standing may, of course, come to mean nothing in the weeks ahead, since the White House has barely begun seeking out suggestions for candidates. The hints could signal that the White House is floating a trial balloon, as it did earlier this year with the attorney general candidacies of Judge Kimba M. Wood, former Watergate prosecutor Charles F.C. Ruff, and others. Officially, the White House is saying nothing.

The nomination of a liberal like Cuomo would set off a violent reaction from organized conservative groups, their leaders say. Although most observers believe that the 57-43 Democratic majority in the Senate makes a defeat unlikely, vocal conservative opposition would create political friction for the President this summer at a time when he is likely to need all the support he can get for his economic and health reform proposals.

But some court observers say that the choice of Cuomo would signify a calculation by Clinton that he would gain enough political support from Cuomo admirers to at least partly offset the negatives.

“It’s a balancing test,” said Elliot Mincberg, legal director of People for the American Way, the liberal advocacy group. “It would be more controversial than choosing a sitting federal judge, but it would bring support because of Cuomo’s political base.”

The nomination would have other pluses as well for Clinton. Although Cuomo is a staunch liberal, his persuasive powers could be sufficient to bring the court’s coalition of moderate conservative justices--David H. Souter, Sandra Day O’Connor and Anthony M. Kennedy--to his point of view.

The appointment would make good on an apparent campaign promise to Cuomo and, importantly, keep the governor from making life difficult for Clinton in the 1996 election.

In Clinton’s view, the choice of a political leader of Cuomo’s stature would “elevate” a court that the President feels has been overly politicized by his Republican predecessors’ selections of jurists with strong ideologies but no national reputation.

Leaders of women’s groups and some ethnic groups already have pressed Clinton to make his Supreme Court appointments a symbol of his commitment to diversity. But few have insisted that the first appointment be a representative of their group. And the future retirements of Justices Harry A. Blackmun, 84, William H. Rehnquist, 68, and John Paul Stevens, 72, could give Clinton three more appointments within the next several years.

Cuomo has been declining comment and discreetly distancing himself from any action that might be read as unseemly lobbying. When Meyer (Sandy) Frucher, a Cuomo associate and New York real estate executive, said this week that the nomination was Cuomo’s “to lose,” Cuomo aides hastened to explain that Frucher was speaking only for himself.

Clinton aides indicate that the President may choose his nominee within the next month, even though he thanked White for announcing his retirement early enough to give the White House time to deliberate. That schedule would avoid letting pressure for a nomination build, and would allow hearings on the nominee to be completed before Congress takes its summer recess.