Boston judge is added to list of finalists for high court seat

May 11, 1994|By Carl M. Cannon and Lyle Denniston | Carl M. Cannon and Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- President Clinton inched toward naming his second appointment to the U.S. Supreme Court yesterday, even as aides said a fifth finalist had been added to the list.

The new name is really a once-considered one: Judge Stephen G. Breyer, chief of the 1st U.S. Circuit Court of Appeals in Boston. Judge Breyer and Interior Secretary Bruce E. Babbitt were said to have been the two finalists for a court seat last June, but that appointment suddenly went to Ruth Bader Ginsburg.

Mr. Babbitt is again a finalist, too. The New York Times reported in today's editions that a senior White House official said that there was a "95 percent chance" that Mr. Babbitt would be Mr. Clinton's choice to replace Justice Harry A. Blackmun, who is retiring.

The other three said by White House officials to be under consideration for Mr. Blackmum's seat are federal judges Jose A. Cabranes of Connecticut, Amalya Kearse of New York and Richard Arnold of Arkansas.

"I think it could happen at any time," White House spokeswoman Dee Dee Myers said yesterday. Several outside sources monitoring the process said that it was likely that the president had already made up his mind.

But after a midday meeting about the vacancy yesterday with his top legal affairs advisers, the president deflected questions about it.

Last year, at the ceremony announcing Judge Ginsburg's appointment, Mr. Clinton paid extraordinary compliments to both Judge Breyer and Mr. Babbitt -- and said they might well wind up on the court someday.

White House counsel Lloyd Cutler has said that the administration is not eager to repeat the circuslike aspects of the process that were a part of last year's search for a justice. The president took 12 weeks to fill that vacancy, and Mr. Cutler has noted that Judge Breyer was embarrassed then by the White House.

After Judge Breyer's name was put out by the White House as the likely nominee, aides there leaked details about the Breyers' employment of an elderly, part-time housekeeper, for whom they had not paid Social Security taxes.

It wasn't clear whether the law required them to pay, but the revelation came after similar "nanny" problems had derailed other Clinton appointees.

Shortly after Justice Blackmun announced his retirement on April 6, Judge Breyer met with Mr. Cutler for dinner. Yesterday, the judge was in Washington for a previously scheduled speech. He left town without talking with reporters, giving no indication whether he had visited the White House.

A Washington lawyer, who declined to be identified because of his role as an active outside adviser to the president's search team, said yesterday that Judge Breyer was a safe and logical choice.

"What he offers is the least 'downside.' Maybe he does not have the most 'upside.' It is hard to find anyone who has a thing against Steve Breyer," the attorney said.

Reminded of last year's reports, from inside the White House, that Mr. Clinton did not react positively to Judge Breyer when they met face to face, the attorney said, "It's true, [the president] didn't like the lunch they had. But it is possible he could be talked out of that."

Earlier reactions to the five candidates suggest that most of them would have relatively easy sailing in Senate confirmation proceedings.

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