Legal Opinion Could Snarl President’s Court Choices : Nomination: Some say Reagan-era Justice Department paper on appointment of lawmakers would bar Mitchell. White House officials disagree.

A Justice Department legal opinion issued during the Ronald Reagan Administration could complicate President Clinton’s consideration of Senate Majority Leader George J. Mitchell (D-Me.) as a nominee to replace retiring Supreme Court Justice Harry A. Blackmun.

The 1987 opinion, which was never disclosed publicly, is based on a constitutional provision that bars the appointment of a U.S. senator or representative to any federal office if the salary for the vacant position was increased while the candidate served in Congress.

Sources familiar with the opinion said it concluded that the constitutional prohibition cannot be waived by simply lowering the salary for a post back to its previous level in order that the lawmaker can be named to the position.

“I think it would be unconstitutional” said Charles J. Cooper, who headed the Office of Legal Counsel in the Justice Department when the opinion was written. The office serves as the attorney general’s legal adviser and does legal analysis for the President.

The salary of Supreme Court justices was last increased in 1991, rising to $148,300 from $118,600 before cost-of-living raises and other adjustments, which pushed the pay to $164,100 by 1993. Mitchell has served in the Senate since 1980.

The opinion was drafted seven years ago for Reagan, who was considering nominating Sen. Orrin G. Hatch (R-Utah) to the Supreme Court vacancy that eventually was filled by Justice Anthony M. Kennedy.

Cooper, in an interview, declined to confirm the existence of the opinion, noting that he cannot discuss any legal advice he provided to the President. But other sources familiar with the opinion said Cooper was the author, and they described its reasoning.

While Cooper would not discuss any opinions issued by his office, he said: “I can tell you what my view is now, and my research has not discovered anything in intervening years that is different.”

Cooper said he rejects the “Saxbe fix” used by the Senate and then-President Richard Nixon in naming Sen. William Saxbe (R-Ohio) to succeed Atty. Gen. Elliot L. Richardson, who resigned rather then fire special prosecutor Archibald Cox during the Watergate scandal.

Under the Saxbe arrangement, the salary of attorney general was reduced to the level where it stood when Saxbe began his Senate term. The same arrangement was repeated last year to pave the way for the confirmation of former Sen. Lloyd Bentsen (D-Tex.) as secretary of the Treasury.

“You cannot appoint a sitting legislator to a position whose emoluments have been increased--period,” Cooper said. “Evasions and maneuvers are just that. They’re not in keeping with the Constitution.”

White House Special Counsel Lloyd N. Cutler said Thursday that he knew about the 1987 opinion but disagrees with its conclusion. In addition, he said he was aware of a contrary opinion issued by one of Cooper’s predecessors in the Jimmy Carter Administration.

Justice Department spokesman Carl Stern said the White House has not asked the current Office of Legal Counsel to review the matter, but he added that he could not rule out such a request in the future.

Cooper said that filling a Supreme Court post presents more constitutional obstacles than does a Cabinet appointment. He cited Article III, Section 1, of the Constitution, which provides that the pay of all federal judges, including Supreme Court justices, “shall not be diminished during their continuance in office.”

Thus, Blackmun would have to step down before the salary was reduced, and Mitchell could not be sworn in as his successor until the pay cut took effect, Cooper said. “That is not the norm,” he said.

Moreover, Cooper said, “a two-tier salary for the Supreme Court would cause confusion--unless you made the evasion transparent by immediately increasing the salary” once Mitchell took his seat.

Although critics might accuse Clinton of manipulating the Constitution by finding a way around the pay-raise problem, some prominent conservatives see the issue otherwise: Former Acting Atty. Gen. Robert H. Bork, whose subsequent nomination to the high court was derailed by political opponents, once endorsed the “Saxbe fix” in 1973 Senate testimony.

But Daniel Troy, who was an attorney in the Office of Legal Counsel in 1987 and regards Bork as “the great god of strict constructionism” in reading the Constitution, said he thinks Bork was “just wrong.”

Times political writer Robert Shogan contributed to this story.