Court Choice: Judge or Politician? : Judiciary: All current justices are from lower courts. Many Clinton aides believe the background of the high court should reflect more diversity.

Is there such a thing as being too judicial to be a good Supreme Court justice?

Many of President Clinton’s advisers think so, and that argument has become a key factor as Clinton continues to mull whom he should pick to fill the vacancy on the high court.

After reconvening his advisers Friday for their first full meeting on the court search in a week, Clinton must still resolve several major questions, aides say--ranging from doubts about the future health of one leading candidate, federal appeals court judge Richard S. Arnold of Arkansas, who has had cancer, to the politically sensitive matter of whether to appoint a member of a minority group, and, if so, from which group.

But another central issue that remains for the President to decide is whether the high court nomination should go to a professional judge, or whether he should appoint a political figure to the panel.

At the center of that argument is a 56-year-old appeals court judge from New York named Amalya L. Kearse.

Throughout the selection process, Kearse’s name has been one of the few that Clinton consistently has had under serious consideration, Administration officials say. Kearse is a judge of unquestioned brilliance, widely respected by her colleagues, and the first black woman ever to become a partner in a major New York law firm. She is seen as a liberal on issues of civil liberties and civil rights, but as more conservative on business-related and federal regulatory issues.

But as Clinton and his advisers keep finding as they scour their lists of potential nominees, no one is perfect.

One argument against Kearse, ironic in an Administration that talks often of the need for diversity, arises because of Kearse’s race.

“In some ways,” a senior White House official said, “when you add up the interest group politics, when you go for an African American, it is even worse” than appointing a white nominee. “The Hispanics and Asians say, ‘Gee, what about us?’ ” That problem could be particularly acute because of the widespread talk early in the process about filling the current vacancy with a Latino nominee.

But the more widely voiced objection, and the one aides say Clinton has been wrestling with, is the claim that the Supreme Court needs more diversity of background. For most of its history, the high court has included some people with previous experience as judges, and others who were political figures, law professors or practicing attorneys before being nominated. Now, however, all nine members of the court are people who joined directly from lower courts--a pattern that many Clinton advisers feel should be changed.

Appointing Kearse won’t accomplish that, the senior official conceded. “She’s not a politician, she’s not that ‘other’ person.”

“There just is not much diversity of experience on this court,” complained another White House official, voicing a line heard frequently from Clinton advisers. Kearse, this adviser grumbled, would only reinforce what is already there.

Clinton adviser James Carville puts the argument more bluntly: “Politicians make the best justices,” he declared.

Administration officials have looked at several politicians who might be viable court nominees, but most have come up short.

Former Virginia Gov. Gerald L. Baliles, for example, is a close friend of Clinton’s, a highly regarded lawyer and well-liked among many in and around the White House. But Baliles is virtually unknown outside his home state. Appointing him could also draw strong objections from liberal groups and at least some labor unions because of positions he took while governor and Virginia attorney general. “Baliles might engender some real opposition,” said the leader of one liberal group. “He would be a major problem.”

Other White House aides have talked of appointing Sen. Paul S. Sarbanes of Maryland, but political advisers fear the Democrats, already working with a dangerously thin margin in the Senate, might not be able to hold onto his seat. A similar argument could apply to Sen. Patrick J. Leahy of Vermont, whom some officials have discussed.

Still others have talked of House Speaker Thomas S. Foley (D-Wash.), although a senior Clinton aide conceded that appointing him “brings some of the same problems as (Sen. George J.) Mitchell” in terms of disrupting the congressional leadership. Mitchell, the Senate majority leader, has declined to be considered for the court in favor of spending the remainder of his term working for health care reform.

Many of Clinton’s advisers argue that a justice with a political background could meld together the court’s scattered moderates into a more cohesive force, changing the culture of an institution in which the nine justices conduct their business with little direct interaction except through written memoranda.

History provides mixed support, at best, for that theory. In recent decades, some politicians appointed to the court, such as the late Chief Justice Earl Warren, have exercised great influence. But so, too, have many non-politicians, such as John Marshall Harlan or William J. Brennan Jr.

Brennan excelled at forging coalitions more than any of the political figures he served with on the court; indeed, he did so more than any other justice in the last half century. At the same time, many politicians appointed to the court have been quickly forgotten--justices like former Sen. Harold Burton or former Treasury Secretary Frederick M. Vinson.

Nonetheless, the attraction of finding a politician-candidate for the court has been strong for the President and his aides. Mitchell, Clinton’s initial choice for the seat, fit the bill entirely.

But since Mitchell’s withdrawal, White House aides have faced trouble finding a political figure who would command the sort of admiration enjoyed by Mitchell.

“If you’re going to appoint someone who is not a judge,” said one White House aide, “the person really has to have some heft.”