Justice Sarbanes? Justice Schmoke?

April 12, 1993

Mario Cuomo's announcement that he is not a candidate to replace Justice Byron White on the Supreme Court gives President Clinton the elbow room he needs. Now there's no candidate with a personal political constituency strong enough to influence the president's decision.

Governor Cuomo's background is just the kind this Supreme Court needs. He has spent most of his adult life in the political trenches. This provides a different perspective on what Supreme Court decisions mean than does a life of learned contemplation of judicial precedents and constitutional history and theory. The two perspectives are valuable, and the Supreme Court needs both. But the present court is woefully lacking in practical political experience. Only Sandra Day O'Connor, who served in the Arizona state legislature, has ever been elected to political office.

Of the other seven, six came to the Supreme Court from federal circuit courts of appeals. This creates a somewhat narrow environment in which to try to solve national legal questions. Thus it is disappointing to read a report from Washington to the effect that Governor Cuomo's withdrawal "has increased the chances that" the president will choose a nominee "from a group of liberal to moderate jurists."

The president should look to liberal to moderate politicians. One previously mentioned as a possibility by a White House aide is Senate Majority Leader George Mitchell of Maine, a former federal judge. But Maine has a Republican governor, who would appoint his Senate successor, and the president probably can't afford to lose that vote. Delaware has a Democratic governor. So does Vermont. Two respected lawyers on the Senate Judiciary Committee are Joseph Biden and Patrick Leahy. Either would easily be confirmed (and replaced by a Democrat). So would another senator from a Democratic state: Paul Sarbanes. He had a better legal education than either Senator Biden or Senator Leahy and has been in Congress longer.

The president should, of course, also look beyond the Senate -- and beyond white men. Washington Post political columnist David Broder has recommended Mayor Kurt Schmoke, who is a good lawyer, an experienced politician and younger than (and so likely to serve longer than) Clarence Thomas. Rep. Patricia Schroeder of Denver is a senior member of the House Judiciary Committee and an expert in the field of family and children's law, which is becoming increasingly important in federal courts. Professor Barbara Jordan is an eloquent champion of her sex, race, party and philosophy. She practiced law, spent 12 years in elective politics and, since leaving Congress, has been teaching national policy at the University of Texas.

A list of all the good, appropriate choices from the world of politics would be a lengthy one. We hope the president has such a list.

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