How to Win Friends and Influence People: Life on the Supreme Court : Court: The finesse of a politician, including a talent at coalition building, is what it takes to be successful on the high court.

A justice with the skills of a politician is precisely what the Supreme Court needs now. Fortunately, President Bill Clinton appears to instinctively understand that. It may also explain why he has been undecided for so long and now has settled on Judge Stephen G. Breyer, an appellate-court judge with considerable political and judicial experience.

More than three months ago, Justice Byron R. White announced that he would retire at the end of the term. At the time, Clinton said he wanted a nominee with “a big heart” and “a fine mind, good judgment, wide experience in the law and the problems of real people.” In short, a justice for the people who have been pushed aside during 12 years of Republican rule and by the appointees of Presidents Ronald Reagan and George Bush.

Clinton always understood that there is more to it than that, however. This nominee will undoubtedly not be his last opportunity to fill a vacancy. Still, the nominee must be confirmable in the Senate, and the President doesn’t need a confirmation battle on this one. No less crucially, the nominee must show promise of leadership on the court.

Clinton appreciates that the highest court in the land is also a supremely political institution. Its internal dynamics depend on consensus building among the justices and its opinions are painstakingly negotiated documents. If anyone doubted that fact of life within the marble temple, there is ample evidence in the recently opened papers of Justice Thurgood Marshall at the Library of Congress.

When circulating memos and draft opinions, the justices strive for consensus, or at least securing a majority for their side. “I’ll swallow my reservations,” Chief Justice William H. Rehnquist wrote in one memo--but only on the condition that suggested changes were made in a draft opinion. Justices may plead to one another, “Won’t you join me.” More often they reason with each other. Cajolery and flattery, as well as threats of dissenting opinions, are par for the course. In these ways the justices compete for influence and chart the court’s direction.

Circulation of memos and draft opinions is at the heart of the court’s deliberative process. Majorities may be lost, the outcome of cases reversed or, alternatively, consensus consolidated and even expanded. Justices need not just first-rate legal minds, but also the personal and tactical skills to create coalitions.

The appointment of a justice who holds the promise of becoming a consensus builder could not be more imperative. The Rehnquist Court is bitterly split 5 to 4 over abortion and increasingly divided on issues such as freedom of speech and religion. This is true in spite of 10 consecutive appointments by Republican presidents, from Richard M. Nixon and Gerald R. Ford to Reagan and Bush. As the Marshall papers further reveal, the combative style and fiercely conservative stance of Justices Antonin Scalia and Clarence Thomas, and at times Rehnquist, have often been counterproductive. As a result, Justices Sandra Day O’Connor, Anthony M. Kennedy, and David H. Souter are emerging as measured centrists and more traditional conservatives.

Last year, for example, in the highly controversial abortion ruling, Planned Parenthood of Southeastern Pennsylvania vs. Casey, O’Connor, Kennedy and Souter ultimately joined the last two moderately liberal justices, Harry A. Blackmun and John Paul Stevens, to form a bare majority for upholding “the essence of Roe vs. Wade.” They did so after a heated exchange of memoranda. Ultimately, Scalia’s shrill demands created a backlash against his calls to overturn Roe and persuaded the courts’s centrists that respect for precedent was central to institutional prestige.

With the retirement of White, who voted to jettison Roe, Clinton has the opportunity to shore up support for a woman’s right to have an abortion. Beyond that vexing controversy, the court’s centrists appear increasingly pliable and open to reason on other issues as well. Clinton realizes he can capitalize on the fragmentation of the court’s conservatives by appointing someone with the vision and personality to find common ground in forging a new consensus.

What the country and the court desperately need is a justice with keen political skills, a collegial manner and the know-how to forge coalitions and shape opinions. Political experience and skills, however, did not dictate the nomination of a politician, nor rule out elevating a sitting judge. Either could fit the bill, if chosen with a view to the court’s chemistry. Just as lack of previous judicial experience is not automatically disqualifying, we should not assume that a sitting judge lacks the political skills necessary to move the court back toward protecting the rights of individuals and minorities.

There is no guarantee that a politician, rather than a sitting judge, possesses the kinds of skills required. In 1946, for example, the justices were bitterly divided and Democratic President Harry S. Truman swore he would name a consensus builder. The Supreme Court, in his words, had “really made a mess of itself.” A proven negotiator, rather than a legal scholar, was needed. So Truman turned to his Treasury secretary and old friend, Frederick M. Vinson, who as an experienced politician ostensibly had “an uncanny knack of placating opposing minds.” Alas, Chief Justice Vinson proved unequal to the task.

Nor was Vinson the only politician-turned-disaster on the court. Justices James F. Byrnes and Harold H. Burton, both elevated from the Senate, were mediocre. So, too, were Stanley F. Reed and Frank Murphy, who Franklin D. Roosevelt elevated from positions as solicitor general and attorney general, respectively. Despite impressive credentials, both were marginal players within the court.

By contrast, Dwight D. Eisenhower’s selection of California’s governor, Earl Warren, to fill Vinson’s chair met with charges that Warren, although a former attorney general, lacked judicial experience. Warren, nonetheless, quickly emerged as a consensus builder. He achieved what would probably have been impossible under his predecessor--a unanimous decision striking down racially segregated public schools in Brown vs. Board of Education of Topeka, Kan. (1954). And he went on to became one of the greatest justices in the court’s history.

Similarly, a sitting judge may or may not have the political skills necessary. Although highly regarded as a state judge at the time of his appointment, no one could have predicted that Justice William J. Brennan would emerge as one of the court’s most influential members. Still, Brennan’s uncommon ability to sway and yield enabled him to consolidate power and move the court in the direction he wanted to go.

Rather surprisingly, Scalia has had the opposite affect. Many in the Reagan Administration banked on his reputation as a team player when giving him the nod over his ostensibly more confrontational fellow appellate-court judge, Robert H. Bork. Scalia, though, is proving a disappointment as a consensus builder. Instead of forging coalitions, his acerbic style and ideological fervor make him uncompromising and divisive.

Other judges besides Scalia have been elevated to the court with high expectations only to alienate their colleagues. Among others who proved abrasive or, at best, merely bit-part players were Justices Willis Van Devanter, Sherman Minton and Charles Whittaker, along with Chief Justice Warren E. Burger.

In coming to focus on Breyer, Clinton had to take into account his nominee’s personal character and legal and political experience--as well as the prospects for Senate confirmation. In addition, particularly at this juncture, Clinton had to consider his nominee’s potential for altering the court’s internal dynamics and overall direction. Not surprisingly, Clinton faced no easy calculation or sure bet in selecting a nominee who would become the 107th justice of the Supreme Court.