Clinton delays high court nomination He lunches with Breyer for 2 hours

June 12, 1993|By Carl M. Cannon and Lyle Denniston | Carl M. Cannon and Lyle Denniston,Washington Bureau

WASHINGTON -- After a two-hour lunch with Boston Judge Stephen G. Breyer, the presumed front-runner for the Supreme Court vacancy, President Clinton decided to give himself at least one more night to ponder his choice.

Top administration officials said privately they assumed that Mr. Breyer, a moderate federal appeals judge popular in the U.S. Senate, was going to be Mr. Clinton's final pick -- probably sometime today .

Dee Dee Myers, the White House press secretary, told reporters shortly after the lunch between the president and his prospective nominee that Mr. Clinton has not made up his mind "as of now," and will "finish this on his own timetable."

Other administration officials, however, were seen reviewing official White House photos of the two men at lunch -- photos not released to the press -- and were overheard discussing the best time to make the announcement.

After the lunch, the judge met for more than three hours with White House counsel Bernard Nussbaum and others. Mr. Breyer was to spend the night at an undisclosed private home in Washington, the Associated Press reported.

Outside advisers involved in the process said they had no reason to believe that the president at this late stage would turn away from Judge Breyer to another candidate.

Yesterday marked the end of 12 weeks since Justice Byron R. White announced his retirement from the court. Justice White explained in resigning that he wanted to give the president ample time to choose his successor before the court's new term begins.

The president has now used up that grace period. Senate Judiciary Committee members say they need a nominee soon to be able to ensure that the confirmation process will be over when the next session begins in October.

In the legal community, the lengthy process is causing some dismay.

"I've come to the conclusion that the president is not going to make a nomination," said one liberal activist attorney here. In a reference to President Franklin D. Roosevelt's controversial attempt to "pack" the court in 1937 with justices sympathetic to his programs, this lawyer quipped, "You might call this 'court unpacking.' "

Mr. Clinton was apparently thrown off course by the refusal of New York Gov. Mario M. Cuomo to take the job. The selection process, which then restarted belatedly, focused on an ever-changing list of supposed "finalists," none of whom excited the president's imagination.

Several times, Mr. Clinton asked his aides to come up with new names, and they did so until the process finally settled down to a contest between two men: Judge Breyer and Interior Secretary Bruce E. Babbitt.

Mr. Babbitt surfaced on the list for the first time last week in a development that seemed to catch everyone by surprise -- including Mr. Babbitt. Although his name was greeted with general respect in the Senate, where Mr. Clinton badly needs a victory, some reservations were raised by Republicans on the Judiciary Committee who complained that he had no judicial experience and might be seen as a "political" appointment.

In addition, environmentalists, who might have been expected to champion Mr. Babbitt's appointment to the high court, lobbied the White House against it on the basis that the former Arizona governor is currently in the job that can do them the most good -- secretary of the Interior.

There was some indication from White House officials, however, that the 54-year-old Judge Breyer might have been more what the president was looking for anyway.

Like Mr. Clinton and Mr. Babbitt, the Boston jurist is known as a conciliator on his own court. But Mr. Breyer has extensive legal experience and alliances with the Republicans on the Senate as well because of his tenure on a criminal sentencing commission.

Former law clerks also say Mr. Breyer hates to dissent, preferring to find common ground with his colleagues. His voting pattern is distinctly moderate, with tinges of liberalism.

Judge Breyer seems clearly to satisfy the one demand that Mr. Clinton has ever publicly laid down for a Supreme Court nominee: that he or she favor abortion rights. The judge took part in a ruling by the 1st U.S. Circuit Court of Appeals that would have nullified the Reagan administration rule barring doctors at government-financed pregnancy clinics from even mentioning abortion as an option.

Mr. Clinton, a lawyer and former law professor, has been involved intimately and personally in the selection process, several aides have said.

This has been especially true since his controversial withdrawal last week of University of Pennsylvania law professor Lani Guinier for the government's top civil rights enforcement post.

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