Asked the musical question, "Who?" would...

LAST THURSDAY I

February 04, 1993|By THEO LIPPMAN JR.

LAST THURSDAY I asked the musical question, "Who?" would Clinton nominate if Thurgood Marshall had died with his boots on, creating a Supreme Court vacancy.

Jeanne Cummings of Cox Newspapers recently rounded up the usual suspects that Democrats think of with one of their own in the White House at last. (The last Democratic president to pick a Supreme Court justice was Lyndon Johnson, 25 years ago.) They are:

* Senate Majority Leader George Mitchell of Maine. New York Gov. Mario Cuomo. Either would bring the court something it hasn't had in a long time -- a real pol. To liberal Democrats, the greatest chief justice of all time was a former governor, the very political (and Republican) Gov. Earl Warren of California.

* U.S. Circuit Court of Appeals Judges Richard Arnold of Little Rock and Amalya Kearse of New York. The circuits have become the traditional source of justices.

* Law professors Laurence Tribe of Harvard and Walter Dellinger of Duke. Dellinger recently joined the White House staff as associate counsel.

Now, Clinton probably expects to get to name a Supreme Court justice soon. Justice Harry Blackmun is 84. Last year this most liberal of the justices said, wearily, "I cannot remain on the court forever."

President Clinton doesn't have to twiddle his thumbs while waiting for Lefty. He has more lower court judicial vacancies to fill than any incoming president in history, according to the Administrative Office of the U.S. Courts -- 109.

The last time the White House changed parties, in 1981, there were only 26 vacancies on Inauguration Day. Why this difference? I'd guess because the Democratic Senate of 1992 decided not to confirm many late Bush nominees, and the Democratic Senate of 1980 rushed to confirm Carter's last nominees.

Bill Clinton has not nominated any judges so far. A president relies on his attorney general to recommend judicial nominees. Since this administration has no attorney general, there's bound to be a delay in filling judicial vacancies.

* * *

A verdict of sorts is in on the Bush judges. Sheldon Goldman of the University of Massachusetts, the expert in this field, says Bush's judges as a group had higher professional qualifications, as judged by the American Bar Assn., than the Reagan judges or the Carter judges.

Bush also nominated more minorities than Reagan, but far fewer than Carter. No surprise there. What was a surprise, to me, at least, is that Bush nominated more women judges than Carter. Most women lawyers in their 40s and 50s -- prime years for judges -- are thought to be Democrats.

* * *

Bulletin: According to a reliable Washington source, Justice Blackmun not only has hired clerks for next term but has informed President Clinton that he expects to serve more than one more term.

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