Clinton’s characteristic desire to have it all could complicate an already difficult process. The search didn’t get really serious until last week, but the president has had months to think about his choice. In a private conversation at the Renaissance Weekend over New Year’s, Blackmun told the president that this term would be his last. White House aides are determined to avoid a repeat of last year’s embarrassing waffling that publicly humiliated two near misses for the court-Interior Secretary Bruce Babbitt and federal appeals court Judge Stephen Breyer-before settling on Ruth Bader Ginsburg. Ritualistically, the “short-list” was rolled out last week with names to please all relevant interest groups. A wild card is always possible, but the choice that seems most likely is Senate Majority Leader George Mitchell.
Clinton’s strongest impulse is to pick a politician or public official who comes from outside the cloistered world of judging. All the Reagan-Bush appointees were elevated from lower courts, but Clinton instructed his aides to find a nominee with “a common-sense understanding of real people’s problems.” Senator Mitchell, a former prosecutor and, briefly, federal judge, has been patiently brokering deals in the Senate for 14 years. Though a partisan Democrat, he has few enemies and is considered a shoo-in for confirmation. When he introduced Sen. Daniel Patrick Moynihan of New York at a recent dinner, Moynihan replied, “Thank you, Mr. Chief Justice.” But Clinton is counting on Mitchell to guide his health-care bill through the Senate, and the key votes probably won’t come until October- after the court’s term has already begun. It might also be unseemly for justice Mitchell to rule on major pieces of legislation that Senator Mitchell helped pass.
A woman justice is unlikelv after Ginsburg, but there are several strong contenders to choose from, including New York appeals court Chief Judge Judith Kaye. If Clinton were to appoint the first Hispanic to the court, Puerto Rican-born Jose Cabranes, who sits as a federal trial judge in Connecticut, would be a natural candidate. But cynics may question why Cabranes, in the mid-’60s, began calling himself Jose instead of Joe, and Cabranes is so moderate that he showed up on George Bush’s shortlist too. Some Clinton aides are pushing for a “real black” to counter Bush nominee Clarence Thomas. Clinton’s solicitor general, Drew Days, is the likeliest African-American. Clinton would also be comfortable with an old friend, Judge Richard Arnold of Arkansas, who is smart enough to stand up to Antonin Scalia, the court’s right-wing heavy -but the president doesn’t want to be accused of cronyism.
All of these careful calibrations may turn out to be useless. Supreme Court justices have a way of defying the expectations of the presidents who choose them. A Nixon appointee, Blackmun was supposed to be one of the “Minnesota Twins,” along with the conservative chief justice, Warren Burger. Undistinguished by his record or appearance before he came on the court, Blackmun himself wondered, “What am I doing here?” the first time he tried on his Supreme Court robes. What he did for the next two decades was to follow his conscience down an increasingly liberal path.
His great landmark was Roe v. Wade in 1973, creating a woman’s right to an abortion. His opinion was based more on scientific research about the viability of human fetuses than on legal precedent, but it withstood ferocious counterattack in the courts, legislatures and streets, Blackmun may bold some kind of record for hate mail: more than 60,000 letters.
The controversy took its toll. Last week he said of his job, “Most of the time it isn’t much fun.” He survived by remaining true to his Midwest roots, and breakfasting with his clerks in the Supreme Court cafeteria. He recently celebrated his 85th birthday by dancing the polka with his wife.
Blackmun’s self-deprecating manner could not conceal his pride over the fact that Roe v. Wade outlasted 12 years of Republican rule under Ronald Reagan and George Bush (‘A chill wind blows," Blackmun wrote in a 1989 dissent from a court decision whittling away at Roe). And he seems relatively secure today. “I think it was right in 1973, and I think it was right today.” he told reporters last week. Then, for the photographers, he raised his arms high. like an old fighter who had endured.
