Advertisement

NEWS ANALYSIS : Chance to Fill Court Seat Could Prove Mixed Blessing for Clinton : Nomination: White House strategists hope choice will help reassure doubters. But women and minorities may well object if pick is a white male.

Share
TIMES POLITICAL WRITER

President Clinton this week is expected to do just what many of his predecessors have done, though none has admitted it: try to use a Supreme Court appointment to boost their political fortunes.

But Clinton’s present circumstances and past experience suggest that what looks like a golden opportunity, created by the retirement of Justice Byron R. White at the end of this court term, could turn out to be at best a mixed blessing.

White House strategists are counting on the announcement of his choice, likely to be Interior Secretary Bruce Babbitt or some other moderate, to reinforce Clinton’s much-ballyhooed claim to be a born-again centrist and to reassure the middle Americans who helped send him to Washington.

Advertisement

It also will be intended to dispel memories of the series of fiascoes that have plagued his presidency, most recently the failed nomination of C. Lani Guinier as the Justice Department’s civil rights chief.

However, by choosing Babbitt--or some other white male such as Federal Appeals Court Judge Stephen G. Breyer, whose name is also being mentioned--Clinton risks further estrangement of minorities, women and other Democratic liberals already furious about his handling of the Guinier nomination.

Even worse, the ploy ultimately could fail to win over moderates if the new justice ultimately takes positions that the President did not expect--as has happened all too often in the past.

But at the moment, the White House apparently views the Supreme Court nomination primarily as an exercise in damage prevention at a crucial point in his presidency.

Clinton can recover from his past difficulties--the overpriced airport haircut, the abortive purge of the White House travel staff, the resistance to his economic plans, even the Guinier nomination--says Allan J. Lichtman, American University specialist on the presidency.

“But from now on,” he warned, “attention is going to be focused on three things--the Supreme Court, the budget and then health care--and he can’t afford to mess up any of the three.”

Advertisement

If Clinton picks Babbitt, or a similar moderate white male, the civil rights community is likely to react more in disappointment than in anger.

“I know Bruce Babbitt and he’s a nice guy,” says Patricia King, a George Washington University law professor and a former colleague of Guinier’s in the Jimmy Carter Administration’s Justice Department. “But,” she adds, “he won’t be greeted with open arms by either women or minority groups.”

Babbitt gets high marks from liberals for his early activism in the civil rights movement and his support for abortion rights, as well as his vigorous advocacy of environmental concerns. But they point out that most of his public record stems from his posts as attorney general and governor of Arizona, a small Western state far removed from the urban and racial turmoil that shape much of the current liberal agenda.

After waiting for more than a quarter of a century for a Democratic President to pick a Supreme Court justice, many women and members of minority groups had hoped that the choice would be one of their own.

In the wake of the Guinier nomination’s bitter conclusion, “an appointee who was a minority or a woman would do a great deal to soothe feelings in the liberal community,” said King. But like other liberals, she is now resigned to the idea that Clinton will, in her words, “pass up an opportunity to pour oil on some very troubled waters.”

Even if these aggrieved sensitivities do not block the choice of either Babbitt or Breyer, liberal disenchantment could cause Clinton harm down the road on the all-important legislative battles over his budget and health care proposals--when he will need every vote he can get.

Advertisement

“Conservative Democrats broke with the President early on,” noted Robert Borosage, director of the Fund for New Priorities, a liberal think tank, citing their complaints about Clinton’s initial economic proposals. “And the President taught them that, when you push him, he gives.”

The liberals, “by remaining loyal, got rolled,” Borosage contended. “You can expect them to be less loyal in the future.”

Moreover, history demonstrates that there also are limits on the loyalty Clinton or any President can expect from a Supreme Court nominee after he or she dons the black robes of the court.

Legal scholars added that forecasting court performance would be particularly difficult with Babbitt because he has never been a judge.

But even jurists like Breyer are hard to predict. The liberal views of Justice Harry A. Blackmun on abortion must have shocked Richard Nixon, the President who appointed him, even though Blackmun was a federal appeals court judge before Nixon promoted him to the court.

But the most dramatic example of a reversal in form on the high court resulted from another new President, Dwight D. Eisenhower, making his first Supreme Court appointment four decades ago. As Clinton is expected to do, Eisenhower selected a nominee, then California Gov. Earl Warren, in large part because he was confident of his moderate views.

Advertisement

What convinced Eisenhower was that his conservative brother, Edgar, condemned Warren as a left-winger, while Eisenhower’s liberal brother, Milton, warned that Warren was far right.

But then came Warren’s epochal tenure as chief justice, highlighted by the unanimous Supreme Court decision to order desegregation of the nation’s public schools, which Eisenhower could never bring himself to accept. And years later, when historian Stephen Ambrose asked Eisenhower what had been his biggest mistake as President he said: “The appointment of that SOB, Earl Warren.”

Advertisement