Clinton Gets Short List of Possible Justices : Judiciary: Sen. Mitchell still seems to be a preferred candidate for the upcoming Supreme Court post. Babbitt is considered an unlikely nominee.

President Clinton’s top advisers presented him with a short list of potential Supreme Court candidates Monday as aides continued sounding out reactions to the possible appointment of the leading candidate, Senate Majority Leader George J. Mitchell (D-Me.).

Aides said that White House discussions continue to focus on Mitchell. But they warned that, as often has happened, the sense of being pushed into making a decision before he is ready could prompt the President to push back and look harder at other candidates.

White House officials said that no decision is likely for at least a couple of weeks as aides continue to pore through the records of potential candidates.

Among the other possible candidates that White House Chief of Staff Thomas (Mack) McLarty, Counsel Lloyd N. Cutler and other top aides discussed with Clinton were U.S. District Judge Jose A. Cabranes of Connecticut; U.S. Solicitor General Drew S. Days III, a former professor at Yale Law School; and federal appeals court judges Amalya Kearse of New York and Richard S. Arnold of Arkansas, according to officials familiar with the discussions.

Officials said Judith Kaye, the chief judge of New York state’s highest court and Interior Secretary Bruce Babbitt were also discussed, although Babbitt’s professed desire to remain at his current job would probably rule him out. Federal appeals court judge Stephen Breyer of Boston also is a possibility, although his chances appear slight given that he was scratched from consideration after being interviewed by Clinton for the previous opening on the court.

As described, the list would appear to meet Clinton’s stated objectives of racial and gender diversity, with its two women and three minority candidates. Cabranes, if named, would be the first Latino nominated for the high court. Days and Kearse are black.

But several officials said that, at least for now, the selection still appears likely to develop as Mitchell vs. everybody else. Indeed, one Administration official insisted that Mitchell is really the only candidate actively under consideration at this point.

“It’s natural they would come back and say there are definitely others,” said the official, insisting that, in fact, the other names are largely protective cover to avoid embarrassment if Clinton decides not to go ahead with Mitchell.

Senior White House officials disagreed with that assessment somewhat, calling it premature.

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“You’re about a half-step ahead of where the President is,” said one top adviser. He said that Clinton is “looking at it a bit in a qualitative way, rather than a candidate way”--thinking about the type of candidate he would like and “the import of the decision,” rather than focusing on specific names. “But those two will likely merge in his mind soon,” the adviser said.

Once Clinton does begin to concentrate on the candidates, the adviser added, it will be clear that Mitchell’s “standing is different than the other potential nominees,” partly because of his experience outside the judiciary, which Clinton prizes, but also because of the particular questions raised by considering him for the court.

Foremost among those questions is whether naming Mitchell would cause too many problems politically, given Mitchell’s role in handling Clinton Administration legislation, a subject on which White House aides continued to take soundings. One possibility might be to delay Mitchell’s confirmation to allow him to complete his work in the Senate on Clinton’s health care plan.

So far, opposition to Mitchell has developed only slowly. Monday, Republican Party National Chairman Haley Barbour told reporters at a lunch that Clinton should not appoint Mitchell because “to appoint somebody who is a partisan politician . . . would be a real setback for the U.S. Supreme Court.”

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However, only one Republican senator, Charles E. Grassley of Iowa, has voiced opposition to Mitchell. Others, most notably Senate Minority Leader Bob Dole (R-Kan.), have expressed support for him. White House Press Secretary Dee Dee Myers dismissed Barbour’s argument, noting that past presidents frequently have appointed senators, governors and other political figures to the court.

White House officials are also awaiting an opinion from the Justice Department’s office of legal counsel on whether appointing Mitchell can be squared with the constitutional clause barring appointment of a member of Congress to a job for which the salary has been increased during the member’s term in office.

During the Ronald Reagan Administration, the legal counsel’s office issued an opinion saying that such an appointment could not be made, but the department took the opposite stand during the Jimmy Carter and Richard Nixon administrations. An opinion from Justice Department counsel Walter Dellinger is expected later this week.