If Not Mitchell, Who Will It Be? : A chance to seek qualities, rather than names

Senate Majority Leader George J. Mitchell’s announcement Tuesday that he has withdrawn his name from consideration for appointment to the U.S. Supreme Court leaves no obvious front-runner for the seat to be vacated this summer by Justice Harry A. Blackmun. Mitchell’s withdrawal gives President Clinton a rare opportunity, in this, his second Supreme Court nomination, to focus less on individual “big names,” their political assets and liabilities, than on the important qualities that Blackmun and the late Thurgood Marshall brought to the high court.

Although Blackmun was nominated by President Nixon as a reliable “law-and-order” conservative, over the 24 years he served on the high court Justice Blackmun became something of the court’s conscience, ready to remind his colleagues that the cases before them involved real people facing very real and often very painful legal dilemmas. In that respect he had much in common with Marshall, who, because of his steadfast and eloquent commitment to constitutional guarantees of equal protection, exercised a profound influence on the court.

Many mentioned as candidates to replace Blackmun could carry forward this commitment to civil liberties and public service. Among them are Los Angeles attorney Vilma Martinez, former head of the Mexican-American Legal Defense and Education Fund; U.S. Solicitor General Drew Days III; Jose Cabranes, a federal judge in New Haven, Conn., and Amalya Kearse, a federal judge in New York.

Blackmun’s retirement was not unexpected. The justice said that he had informed the President last January that this would be his last term and a White House search for his replacement was already under way by the time of his April 6 announcement. Clinton must continue to move with all deliberate speed in filling this vacancy so that the new justice can take his or her seat on the bench when the new term begins next fall. In recent years, Senate hearings on Supreme Court candidates have become elaborately choreographed and drawn out affairs, with their outcome not always certain. Thus the President would not want to wait any longer than necessary in making a nomination.

But this Supreme Court nomination should not overshadow the continuing pressing need to fill the enormous number of vacancies on federal trial and appellate courts. A whopping 107 open judgeships remain; Clinton has made strides in filling the huge number of vacancies he inherited from George Bush, but as new judges take their seats, additional vacancies open, often due to the retirement of older judges. Almost half the vacancies now on the bench are more than two years old. The 9th Circuit Court, which includes California, along with courts in the District of Columbia and elsewhere have vacancies of particularly long duration. These open seats create backlogs in every courtroom and delays in seeking justice.

Filling these seats, along with Blackmun’s seat on the Supreme Court, should be among Clinton’s highest priorities.