Legal Ruling Sought on Mitchell Candidacy : Court: Constitution bars lawmakers from voting to raise pay for federal judiciary jobs, then moving on to fill them. Senator voted to hike salaries.

Signaling rising concern, the White House Friday asked Justice Department lawyers for a formal opinion on a constitutional issue that could complicate a nomination of Senate Majority Leader George J. Mitchell to the U.S. Supreme Court.

White House Special Counsel Lloyd N. Cutler, who in recent days has sought to minimize the issue, asked the Justice Department’s Office of Legal Counsel for its view on whether a sitting U.S. senator who voted to raise the pay of the federal judiciary can later sit on the high court.

The issue arises because of a section of the Constitution called the “emoluments clause” that was intended to keep lawmakers from creating comfortable federal jobs, then moving on to fill them.

White House officials, citing precedents in executive branch appointments, insisted that they remain confident of their view that such a move can be made constitutional if the judge’s salary is lowered to where it stood before the lawmaker’s tenure in Congress. But they acknowledged that a contrary Justice Department opinion, issued in 1987 on the possible nomination of Republican Sen. Orrin G. Hatch of Utah to the court, had raised points that needed to be addressed.

“This is not a constitutionally frivolous question,” said Joel Klein, deputy White House counsel. “There has been no court to rule on it (and) thus it is an issue that needs to be fully and carefully considered.”

Mitchell emerged as a leading candidate when 85-year-old Justice Harry A. Blackmun announced Wednesday that he plans to retire after 24 years on the high court. While White House officials have denied publicly that there is a front-runner, one senior Administration official said Friday that the Maine senator almost certainly will be Clinton’s choice unless serious complications arise.

Meanwhile, a few congressional Republicans began to join conservative activists and a small number of academic constitutional experts in questioning the constitutionality of Mitchell’s possible selection.

Apparently fracturing the Senate’s solid support for its most powerful member, Sen. Charles E. Grassley (R-Iowa) said that the emoluments clause makes such a selection unconstitutional. He said that, while a similar problem with the appointment of Justice Hugo Black had been cured by a congressionally ordered reduction in Black’s salary, “such a legislative cure has never been adjudicated.”

Rep. Dick Armey of Texas, the third ranking House Republican, cited the 1973 opposition of Democratic Sen. Robert C. Byrd to the attorney general nomination of then-Sen. William Saxbe, a Republican, for the same reasons. Saxbe ultimately was confirmed after the attorney general’s salary was lowered to where it stood before he entered Congress.

However, some legal experts have faulted this so called “Saxbe fix” as an end-run around the Constitution’s intent. Another complication arises from Article 3, Section 1, of the Constitution, which provides that federal judges’ pay “shall not be diminished” during their terms in office.

White House officials have discussed the possibility of lowering the salary for the new justice before Mitchell would be sworn in. But critics assert that this too is an evasion of the Constitution.

Armey, a leader of the Republicans’ conservative wing, said that Byrd’s “eloquent speech” in opposition to Saxbe’s nomination in 1973 “seems to be a definitive foreclosure of (Mitchell’s) nomination.”

Neither Republican nor Democratic aides in Congress said that they believe the issue is important enough to prevent a majority of Democrats from voting for a Mitchell nomination if it comes before them.

But some speculated that the prospect of a bruising controversy could affect President Clinton’s choice for the court if he has several attractive candidates before him. Such a controversy might, for example, cause him to decide instead in favor of a Latino candidate who could help lure Latino voters to the Democratic ticket in the mid-term and 1996 elections.

Administration officials said that the next few days will be crucial in White House calculations on whether to ignore the issue or move to other candidates.

Conservative activists in Washington insisted that the clause absolutely bars Mitchell’s nomination.

“This is as clear as it can possibly be. The Constitution on its face flatly prohibits the appointment of Sen. Mitchell to the Supreme Court in 1994,” said Tom Jipping, legal director for the Free Congress Foundation, a conservative group that monitors the courts.

“This is not a minor matter. It is the Constitution and those who have taken an oath to follow it, including Bill Clinton and George Mitchell, should not play games with the Constitution to put somebody on the Supreme Court,” Jipping said.

The emoluments clause arose from a lengthy debate during the Constitutional Convention of 1787 over how to prevent lawmakers from creating cushy, good-paying jobs for themselves. They were aware that in England, the members of Parliament often voted to establish high-paying government jobs, which they then took for themselves.

As a result, they wrote a provision in the U.S. Constitution which says: “No senator or representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States, which shall have been created, or the emoluments whereof shall have been increased during such time.”

The Supreme Court salaries were made significantly better-paying during Mitchell’s Senate term.

In a 1991 measure, Congress voted a 25% pay raise for the federal judiciary. The salary of an associate justice of the high court jumped from $118,600 to $148,300. Since then, cost-of-living raises have lifted the pay to $171,500 for the chief justice and $164,100 for the associate justices.

The Justice Department’s Office of Legal Counsel, which has assigned three lawyers to analyze the issue, has responsibility for researching legal questions and advising Administration officials on the state of the law.

Clinton has not yet been fully briefed about the details of the legal arguments, an aide said.

Times staff writers Ronald J. Ostrow and Karen Tumulty in Washington and David Lauter in Minneapolis contributed to this story.