Too early to judge Breyer, but not how he was picked


May 14, 1994|By Jack Germond and Jules Witcover

WASHINGTON -- In nominating Judge Stephen G. Breyer to the Supreme Court, President Clinton may have chosen another Brandeis or Cardozo, for all we know now. The one thing that is clear, however, is that the president's handling of the whole process has been remarkably inept as a political exercise.

The flip side of the choice of Breyer is the rejection of Secretary of the Interior Bruce Babbitt, the one candidate on the list of Clinton finalists who had evoked the most opposition from Republicans in the Senate.

Thus, there will be the inevitable perception that once again the president has caved in rather than make a fight for someone he really wanted. As that possibility arose in the last few days, Democrats in Congress were asking one another -- rhetorically and privately -- whether Clinton was aware which party had won the presidency. If so, why allow Sen. Orrin Hatch, the ranking Republican on the Senate Judiciary Committee, to determine a choice for the Supreme Court?

The president himself was clearly on the defensive about Babbitt. He took pains to describe the qualities the Democrat from Arizona would have brought to the court, then insisted repeatedly -- and with a straight face -- that he "couldn't bear to lose" him from the Cabinet. It was an assertion that obviously will be greeted with skepticism by those who recognize the difference between running a second-tier Cabinet department and lifetime appointment to the Supreme Court.

The picture of Babbitt being passed over was reinforced by two factors. One was Clinton's own assertion that he might like to choose someone from political life -- someone with "real world experience" became the overnight cliche -- such as Senate Majority Leader George Mitchell or Babbitt.

Another was that when Breyer also qualified as a putative finalist a year ago for the appointment that went to Ruth Bader Ginsburg, the word passed from the White House had been that the 55-year-old Court of Appeals judge had not made a strong personal impression on Clinton.

The president was clearly defensive on the question of the time it took him to make the choice. He described the decision as "a duty best exercised wisely and not in haste," and he pointed out that it had been only 37 days since Justice Harry Blackmun had announced his retirement. On the face of it, that argument has some validity. No one in politics believes the American people have been sitting on the edge of their chairs before their television sets for the last five weeks, wringing their hands over the delay in the decision.

But this was not a matter of 37 days. Justice Blackmun signaled clearly in an opinion in the Pennsylvania abortion-case decision last summer that he was planning to step down soon. And he informed the White House in January that his retirement was imminent. Moreover, Breyer and Babbitt and all the others on the finalist list for Clinton had been considered and vetted a year ago. Thus, the inevitable inference was that the president himself could not reach a decision.

One of the obvious effects of the delay was that it allowed advocates of particular candidates to build their cases and nourish hopes that were --ed. By choosing another middle-aged white jurist, Clinton has disappointed two critical constituencies of the Democratic Party -- Hispanic-Americans, who had been led to believe Judge Jose Cabranes of Connecticut was high on his list, and blacks, who made a case for Judge Amalya Kearse of New York.

But the greatest damage to Clinton's image growing out of the delay is the way it appeared that he was not just consulting with Senate Minority Leader Bob Dole but kowtowing to such ironclad conservatives as Hatch and Sen. Phil Gramm of Texas, who blustered about this Democratic president making a political choice as if that were somehow unprecedented.

By the time the choice was made, Breyer's prime asset seemed to be that he would be the nominee easiest to confirm -- not political like Babbitt, not dealing with cancer like Clinton's old friend from Arkansas, Judge Richard Arnold. Clinton himself offered a lame testament to Breyer's "political savvy" by pointing out he had the support of both Hatch and his ideological opposite number, Sen. Edward M. Kennedy of Massachusetts.

Breyer's reputation suggests he may be a brilliant justice, but that could hardly be said of the process that put him there.

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