Mitchell's court bypass isn't the first time



WASHINGTON -- Senate Majority Leader George Mitchell's decision to take himself out of the running for the Supreme Court vacancy created by Associate Justice Harry Blackmun's impending retirement was actually the second time Mitchell let President Clinton know he would not be available. But he made it clear this time around, in his news conference, that he wasn't closing the door to a future appointment -- as chief justice.

Last year, when Associate Justice Byron White announced his retirement, Mitchell was on the list of those prominently mentioned as a prospect to fill his seat. Mitchell informed Clinton that he did not wish to be considered.

Several months later, when he was still planning to seek re-election to the Senate, Mitchell privately told friends he never intended to spend the rest of his life in the Senate. He mused about the possibility of becoming baseball commissioner and about a future vacancy on the Supreme Court.

Having already served as a federal district judge, he indicated to those friends that he was not particularly interested in being merely one of nine, but becoming chief justice might be a different matter. But when he subsequently announced that he was leaving the Senate, the speculation naturally spread again about his possible appointment to the next Supreme Court vacancy, or as baseball commissioner.

Confronted specifically at his news conference with rumors that Chief Justice William Rehnquist might soon retire -- rumors that have widely circulated in Washington for some time -- Mitchell, straight-faced, said he hadn't heard them. But he replied that if another vacancy occurred and Clinton "tells me he wants to nominate me," he would consider it at the time.

None of this means that Mitchell is holding out for the better offer of leadership of the Supreme Court. Nothing would have prevented him from taking the Blackmun seat now and being elevated to chief justice by Clinton if Rehnquist retired.

Nor is there reason to doubt that his rationale for declining the appointment now is a sincere one. He had good grounds for wondering whether his ability to advance what he called the president's "agenda for change" as Senate majority leader would have been compromised by his simultaneously undergoing confirmation for the Supreme Court.

Although even Senate Minority Leader Bob Dole had urged Clinton to name Mitchell to the court and had predicted easy sledding for his confirmation, Mitchell was right in saying there was no way of knowing what circumstances might develop on the difficult legislative road ahead, particularly for the president's health care reform proposals, that might poison the Senate atmosphere and leave health care the casualty.

To questions about why, if he was so interested in passage of health care reform, he was quitting the Senate after this year, Mitchell pointedly said he believed it might be this year or not at all for serious reform and he was determined to "seize it [the opportunity] this year." He noted that his interest in health care went back to his entry into the Senate in 1980 and his role in advancing such proposals as chairman of the Senate subcommittee dealing with it.

So George Mitchell is again passing up a chance to sit on the highest court in the land to try to conclude his much-lauded service as Senate majority leader with enactment of the most far-reaching social welfare legislation in at least 40 years. If he succeeds, passage of health care reform will further enhance a reputation that has been virtually unmatched for effectiveness on Capitol Hill since the days Lyndon Johnson held the same job.

Then, whether Mitchell finds a cushy political safe haven as commissioner of baseball or as a rainmaker for a prestigious law firm, he will be able to wait in leisure and comfort for Rehnquist to retire, and for a possible offer from Clinton to replace him -- if indeed the conservative Rehnquist, appointed by Republican President Richard Nixon, decides to step down while a Democrat sits in the Oval Office.

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