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Archive for Saturday, June 12, 1993

SATURDAY COLUMN

June 12, 1993

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Current speculation suggests either Interior Secretary Bruce Babbitt or Boston judge Stephen Breyer is likely to be President Clinton's choice to fill the Supreme Court vacancy created by Justice Byron White's retirement from the nation's highest judicial bench.

Clinton is said to be eager to nominate an individual who will have relatively little trouble getting confirmation from the Senate Judiciary Committee and is said to prefer an individual he knows personally.

The 54-year-old former Arizona governor seems to fit the bill as the president's advisers claim Babbitt would not spark a bitter, negative debate among senators. Also, he comes from the "former governors club" which Clinton seems to think represents an ideal pool of talent. Breyer is known as a consensus-builder and was confirmed during the Reagan presidency.

Environmentalists are pleased with Babbitt as Interior Secretary, and they do not like the possibility of losing a secretary who is looked upon as a knowledgeable and sympathetic friend. Nevertheless, the president obviously thinks the Supreme Court nomination carries more weight and political importance, and at one point was said to be very close to naming Babbitt for the judicial position.

THE FORMER governor apparently did a good job in Arizona, serving three terms as the state's chief executive and also serving as Arizona's attorney general. This indicates he was a popular politician.

But is he a legal scholar or does this mean much these days? Is it more important to be popular, noncontroversial and "safe" or to be a scholar?

The Judge Robert Bork nomination battle would seem to have answered this question for many years to come. Bork was a legal scholar, one of this country's most knowledgeable legal scholars concerning the U.S. Constitution.

However, he had written many decisions and many articles. He had a paper trail, and those who opposed Bork's nomination used his writings, along with their partisan, bitter, narrow and politically motivated tactics, to defeat the highly qualified judge.

Bork and others have said the best way to get someone approved for the Supreme Court is to nominate an individual without any potentially damaging paper trail and someone who has the appearance of being fairly moderate and a "nice person."

This seems to describe Babbitt. Chances are, however, Clinton would have much preferred to have named someone far more liberal than Babbitt but he was forced into the Babbitt nomination due to his blunder with the nomination of liberal and radical Lani Guinier -- another longtime Clinton friend whom the president was supposed to have known well -- as assistant secretary for human rights.

ALSO, THE U.S. Senate election in Texas in which a Republican trounced a Democratic incumbent senator, along with the current debate on the president's budget and tax plan all caused Clinton to make some concessions and major changes in the types of individuals he was considering for the Supreme Court. He did not want to paint himself with more liberal political coloring.

Thus the "safe" Babbitt nomination. Or the Breyer nomination, to appease the environmentalists.

There's only one trouble. Is it wise to go for the "safe" candidate rather than the best candidate?

If the pressures to keep Babbitt at his Interior post are sufficiently strong, and offer Clinton an excuse to nominate a more liberal candidate, then Breyer seems to provide the president another alternative.

Various observers have termed the Boston federal appellate judge as being liberal, but he appears to have the support of both Republican and Democrat senators. Sen. Orrin Hatch of Utah, the ranking Republican on the Senate Judiciary Committee, has been supportive of Breyer. Also, Bob Dole is reported to be more favorable toward Breyer than Babbitt.

CLINTON DOES not want a shootout on this nomination and it could be that Breyer would receive more bipartisan support than Babbitt with his strong political background.

Several weeks ago, Harvard law professor Alan Dershowitz, in a presentation to a number of newspaper editors and publishers, pointed out that in his opinion, none of the current Supreme Court justices were known and recognized as legal scholars prior to their appointments. He said their public recognition has come following their appointments to the Court rather than any of them having carved out a distinguished law career prior to their nominations.

He then asked if it was right for this country to have major decisions, decisions that affect the life and actions of millions of Americans, hanging on 5-4 votes by a group of mediocre jurists.

Unfortunately, Clinton has done nothing to improve the situation if he appoints Babbitt. As noted previously, Babbitt may be a top-flight individual, a successful politician and Interior secretary who has won the hearts of environmentalists and animal rights people, but the question remains, is he a legal scholar, and the answer is "no."

POLITICS IS the primary reason Babbitt or perhaps Judge Breyer will be nominated, no matter how Clinton and his advisers -- David Gergen included -- try to color the selection. The Supreme Court should be the one institution in which politics should take a back seat, but, unfortunately, the Democratic-controlled Congress has ruled with such an arrogance that nominees -- by both Republican and Democratic presidents -- have been based on potential political fallout rather than in trying to select individuals with the best and most honest legal minds. The country and its citizens are being short-changed by partisan politics in the selection of Supreme Court nominees. Before any wild-eyed liberal Democrat asks why the Babbitt yardstick is not applied to Bush's nomination of Clarence Thomas, this too was based on politics. Bush wanted a black jurist and no one suggested Thomas was the best legal scholar available. Likewise, Democrats opposed Thomas on political grounds and they saw Thomas as too conservative.

This is one more example of partisan politics by both Republicans and Democrats in the selection of Supreme Court justices.

CLINTON, battered by the fallout from his poor performance and fearful of making more enemies and losing even more public respect, is playing politics and searching for the safest, least controversial nominee.

The one benefit arising out of Clinton's current predicament is that the country will be spared the nomination of a far-left, liberal justice which Clinton otherwise could have been expected to nominate.

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