POLITICS : Once-Easy Path to Confirmation Transformed Into Partisan Battlefield : Even ‘neutral’ presidential nominees can’t escape controversy. Influence of interest groups seen as fueling trend.

When he picked federal appeals Judge Stephen G. Breyer for the Supreme Court, President Clinton was counting on avoiding controversy in the Senate. Yet when Breyer’s confirmation hearings got under way last week, the widely respected jurist found himself fending off conflict-of-interest charges.

Although the allegations almost certainly will not derail his appointment, the assault on Clinton’s supposedly non-controversial nominee demonstrates that for high-profile presidential appointments, the once-easy path to confirmation has been transformed into a political minefield.

“Years ago the assumption was that the President could appoint whoever he wanted to, within reasonable bounds,” says Boston University political scientist Mark Silverstein, author of a book on “the new politics” of confirmation. “Now the rule seems to be: ‘We have to pick someone who can get through.’ ”

The shift is surprising. Most analysts attributed the bitter confirmation battles during the Ronald Reagan-George Bush years to divided government. Democrats in control of the Senate rejected President Reagan’s choice of Robert H. Bork for the Supreme Court and President Bush’s selection of former Texas Sen. John Tower to head the Pentagon--not to mention coming within three votes of turning down Bush Supreme Court nominee Clarence Thomas.

But even now with the Democrats controlling both the White House and the Senate, the constant threat of disaster hangs over the confirmation process. Burned first by his failed Justice Department nominations of Zoe Baird and C. Lani Guinier, Clinton was then startled by the abrupt withdrawal under fire of Bobby Ray Inman, the President’s first choice to replace Les Aspin as defense secretary.

To avoid such messy battles, which could imperil Clinton’s domestic programs in Congress, analysts say he has yielded to caution in making his selections for the Supreme Court.

Given his ambitious legislative agenda, “the important battles for Clinton are the ones he doesn’t have to fight,” says David Mason, Heritage Foundation specialist on congressional affairs and a former Reagan White House aide. “His concern about the confirmation process is very much affecting his selection process.”

The choices of Breyer and Ruth Bader Ginsburg for the high court disappointed liberals, who recall Clinton’s early talk of nominating New York Gov. Mario M. Cuomo, the epitome of liberal activism, or some other politician with “a big heart” for the court.

On the other side of the ideological fence, Clinton’s choices have given right-wingers reason to crow over their claimed success.

“The game is played differently now than it was two years ago,” when the Republicans held the White House, says Thomas L. Jipping, director of the Free Congress Foundation’s judicial selection monitoring project, supported by more than 60 conservative organizations. “But the goal is still the same, to keep liberal activists off the court.”

As Clinton appeared close to naming Interior Secretary Bruce Babbitt to the court this spring, Jipping and his conservative interest-group allies signaled their displeasure, reinforcing threats of opposition from Republican senators. “We just made it clear that just as there would be organized opposition in the Senate, that there would also be a lot of opposition from a grass-roots perspective,” Jipping said.

Clinton denied that he was intimidated. But Administration insiders found it hard to otherwise explain the abrupt switch from his apparent decision to pick Babbitt.

Conservatives claim that liberals ignited the continuing confirmation wars by ganging up to prevent the Bork nomination in 1987, relying on what Boston Globe reporter Ethan Bronner, in his book “Battle for Justice,” described as “the masterly use of media manipulation and message framing.”

Liberals contend that Reagan started the conflict by trying to pack the courts with conservative judges and that Bush followed his lead to carry out a social agenda they could not get enacted by Congress.

“Reagan wanted to put ideologues on the federal bench because he couldn’t dismantle legal services and couldn’t blunt re-enactment of voting rights,” says Nan Aron, head of the Alliance for Justice, a coalition of about 30 liberal groups.

Liberals complain that conservatives escalated the struggle during the Clinton presidency. Clint Bolick of the Institute for Justice, a conservative public-interest law firm, stirred up such a fuss against University of Pennsylvania law professor Guinier--whom he labeled a “quota queen”--that Clinton was forced to scrap her nomination as head of the Justice Department’s civil rights division.

But in reality, the causes of the turmoil are broader and deeper, rooted in fundamental developments that have shaped the post-World War II era--notably the rise of judicial activism and the decline of political parties, along with the emergence of interest groups and the media as major players on the fragmented political scene.

Before then, the confirmation process was relatively tranquil. Not until 1925 did a Supreme Court nominee even testify before the Senate.

For the next three decades, nominees appeared only occasionally and almost always had little difficulty. Then the Supreme Court under Chief Justice Earl Warren stirred widespread outrage with rulings overturning racial segregation, expanding the rights of criminal suspects and banning school prayer--making court nominations part of the political arena.

In 1968, President Richard Nixon’s attacks on the Warren court’s rulings helped him win the presidency. But when Nixon tried to reshape the court along more conservative lines, the Democrat-controlled Senate rejected two of his nominees, Clement Haynsworth and G. Harrold Carswell, the first time a high court nominee had been rejected in nearly 40 years.

During this same period, interest groups on both the right and left were learning to assume the role once played by political parties in mobilizing grass-roots support for their objectives. And they sharpened their teeth on confirmation fights over nominations for the court and other top-level positions in government, often using the media to advance their ends.

“The press tends to focus on sexy and irrelevant things,” Jipping says. “But it’s very important in getting information across. It’s sort of like a loaded gun: You can use it for good or bad purposes.”

While most nominations still sail smoothly through the Senate, the increasing number that cause controversy worries some scholars. They argue that the trend toward transforming the confirmation process into a form of guerrilla theater erodes public faith in government and discourages people from accepting presidential appointments.

One possible way to curb this tendency, Yale Law School Prof. Stephen L. Carter suggests, is to amend the Constitution to require a two-thirds vote of the Senate instead of a simple majority for confirmation. This change, Carter contends in his new book, “The Confirmation Mess,” would discourage presidents from picking nominees far to the left or right, because they would be unable to get the necessary votes.

But Silverstein dismisses such mechanical changes as unrealistic. “If you want to change the process, you have to make political parties stronger and more responsible.”

Besides, Silverstein is untroubled by the current confirmation turbulence, particularly when it applies to Supreme Court justices who have lifetime tenure and immense influence.

“Now politics defines who is on our courts,” he says of the transformed confirmation process. “I don’t think that’s so bad in a democracy.”