Appeals judge Breyer gains in court stakes White successor may be named

June 11, 1993|By Lyle Denniston and Carl Cannon | Lyle Denniston and Carl Cannon,Washington Bureau

WASHINGTON -- U.S. Circuit Judge Stephen Breyer edged forward noticeably yesterday in the final two-man competition for the vacancy on the Supreme Court, persons close to the selection process said last night.

Amid signs that President Clinton could announce his choice tomorrow, the 54-year-old Boston judge appeared to be closer than Interior Secretary Bruce E. Babbitt to getting the nod to replace retiring Justice Byron R. White.

The competition between Judge Breyer and Mr. Babbitt has been going on for several days, primarily in the mind of the president, said two highly placed White House officials.

Two days ago when most major news organizations were reporting that Mr. Babbitt was the likely choice, White House officials were insisting privately that the president really had not made up his mind.

"The reason I don't know is because what we're telling you is true," said the communications director, Mark Gearan. "He really hasn't made up his mind."

In an exchange late Wednesday with a reporter in a West Wing hallway, White House counselor David R. Gergen was asked when Mr. Babbitt would be nominated.

"It might not be Babbitt. There's really two of them on the list," Mr. Gergen swiftly answered, adding that the selection had come down to Mr. Babbitt or Judge Breyer.

One important factor that top White House officials keep stressing when discussing the appointment is the nominee's confirmability in the Senate.

This was believed to be one of the reasons that the President turned to Mr. Babbitt, who sailed through his Senate confirmation hearing for his Interior post in a two-day session that was more like a love feast than recent Senate confirmation hearings.

Mr. Babbitt, a former presidential candidate and Arizona governor, is close personally and politically to the president, and had appeared to be on the verge of being chosen earlier this week. In fact, White House aides were saying less than two days ago that the chances that Mr. Babbitt would be selected were about 70-30.

But earlier this week, officials said, Republican Sen. Orrin G. Hatch of Utah told the president personally that although Mr. Babbitt would proably have little trouble being confirmed, Judge Breyer would likely be confirmed 100 to 0.

And by mid-afternoon yesterday, reports reaching outside advisers to the selection process were that the competition had become 50-50.

The emergence of Judge Breyer represented a turnabout in the preference that seemed to be developing in Mr. Clinton's mind.

"My sense," one outside adviser said last night, "is that it has shifted in Breyer's favor."

The reason, it was suggested, was that he would be the politically safer choice for Mr. Clinton to make, minimizing if not eliminating altogether a Senate fight.

One liberal activist commented last night about the emergence of Judge Breyer: "This ain't a daring choice."

In recent days, as Judge Breyer seemed to be losing ground to Mr. Babbitt, Republicans in the Senate and conservative activists in private organizations began applying pressure for selection of Judge Breyer.

Although Judge Breyer was once a staff aide to liberal Massachusetts Democratic Sen. Edward M. Kennedy, he also has close ties to senior Republicans on the Senate Judiciary Committee, including the two top GOP members, Mr. Hatch and Sen. Strom Thurmond of South Carolina. Judge Breyer has worked closely with them on federal criminal sentencing reforms in recent years.

Conservative activists had been making loud public complaints about Mr. Babbitt's assumed liberalism on social issues and have indicated that they would mount a major lobbying campaign against him.

Although Mr. Clinton almost certainly would stir some resentment among liberal activists who would feel that he had capitulated to conservative Republicans, the president always can present Judge Breyer as a former Kennedy staff assistant. Because Mr. Kennedy and his staff have been lobbying privately for Judge Breyer to be chosen, liberal organizations would not be likely to resist that choice publicly.

Although Judge Breyer's chances definitely were improving yesterday, a number of persons familiar with the selection process cautioned that Mr. Clinton could still change his mind before bringing his nominee out in public this weekend or early next week.

The president, his aides have said, definitely wants to meet with Judge Breyer before finally making up his mind. Such a meeting could occur later today, after Judge Breyer is released from a Boston hospital, where he has been recuperating from injuries in a bicycle accident.

Two White House aides reportedly interviewed Judge Breyer in his hospital room yesterday. After the dinner hour last night, one news account suggested that the president had settled on Judge Breyer as his nominee, provided that their face-to-face meeting went well. The Associated Press quoted an unnamed White House aide saying the nomination is `[Judge Breyer's] to lose.

"The president just wants to meet him to make sure," the official said.

White House Press Secretary Dee Dee Myers, seeking to explain both why the appointment has taken so long and why there have been these boomlets first for Mr. Babbitt and then for Judge Breyer, explained that the president likes to argue internally for a position for a couple of days and then turn around and argue against it for a couple of days.

"So people who come through his office in the middle of this process and see only a part of what's going on sometimes get the idea that he's more definite about something than he really is."

Speaking for herself, however, she said she had no idea which of the men he would choose.

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