At 3:30 p.m. last Friday afternoon, after days of trying to decide among the last three candidates on his list for the Supreme Court, President Clinton suddenly added a new name to the list -- Paul Sarbanes. The Maryland senator would no doubt be a good justice. Editorialists here have pointed out his qualifications more than once. Senate and House service, excellent legal education, etc.
But the way to choose a justice is not as an afterthought, though that almost seems what President Clinton did last year, adding a finalist at the last moments of the process and then picking her.
This year the process was even less commendable. After weeks of private deliberations, the president and his staff and aides went public through leaks, turning the final three candidates into "contestants" who were looked over and graded in various categories in public for days on end. Not a pretty process. As for the result, we would have preferred someone with senatorial experience, like Senator Sarbanes, or gubernatorial experience, like Secretary of the Interior Bruce Babbitt. The Supreme Court is overloaded with ex-federal appellate judges like Stephen Breyer, the president's choice.
But if he had to have another judge, the president at least chose a very good one. Mr. Breyer is chief judge of the U.S. Court of Appeals for the First Circuit in Boston and his opinions are respected by liberals and conservatives alike. (Unlike some observers, we put him in the former category.) He is a protege of the very liberal Sen. Edward M. Kennedy. He once clerked for one of the most liberal justices of recent decades, Arthur Goldberg. As a senior staff member at the Judiciary Committee working for Senator Kennedy he gained experience that is the next best thing to being a senator, in terms of knowing how the legislative process really works, how laws really get passed, and what they really mean. Executive experience is valuable, too: Judge Breyer worked in the anti-trust division of the Justice Department and was an assistant to the Watergate special prosecutor.
His professional and educational qualifications are also first-rate. graduated from Stanford, went to Oxford and graduated magna cum laude from Harvard Law School.
President Clinton deserves credit for this nomination for this reason, too: There is no personal political advantage in it. Senator Kennedy was already a close ally on health care, so he gained nothing he couldn't already count on in that regard. The political choice would have been Judge Jose Cabranes. He is Hispanic. If Democrats can get an increased share of the Hispanic vote in 1994 and 1996, that would be a big political plus. The president must have been tempted.