When it comes to the Supreme Court, President Clinton needs a no-brainer.
That doesn’t mean the president should recruit his first nominee from inside the Branch Davidian compound in Waco or among Hollywood screenwriters.
No, it means Clinton should find a successor to retiring Justice Byron White who will produce a collective “Why not?” from the public, the pundits and the Congress.
That’s a tougher assignment than you might think, given the highly politicized nature of Senate confirmation hearings in recent years.
These days Washington is rife with Republicans who want to exact vengeance for the supposed indignities suffered by Justice Clarence Thomas, who made it to the court, and Judge Robert Bork, who didn’t.
There’s a posse forming for Clinton’s nominee, and the length of rope being carried by Republicans has little to do with the finer points of American jurisprudence.
The dark secret of the Supreme Court confirmation process is that the defeat of Bork in 1987 marked the crest of the wave for American liberalism in the Reagan years. It was a moment from which neither political party has quite recovered.
Bork’s rejection provided the singular triumph of the Ted Kennedy wing of the Democratic Party, the civil rights Establishment and women’s advocacy groups in the 1980s. And it was a victory that coalition was unable to replicate on any front.
Still, the moment eats at Republicans, who suspect that Clinton is about to unlesh a nominee from the Hillary Rodham Clinton-Children’s Defense Fund-Ramsey Clark School of Law.
Chances are he’s not. But Clinton, the self-proclaimed New Democrat, bungled the selection of an attorney general, shuffling the diversity deck in a clumsy effort to keep a campaign promise. He wound up with Zoe Baird and, later, Judge Kimba Wood, a pair of prospects he didn’t know.
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Settling on Janet Reno appears to have solved the problem at the Justice Department, but Clinton must combat the notion that he has been paying off the liberal special interest groups with high-level political appointments.
The morning-line list of prospective nominees covers a narrow range of ideology, from standard-brand liberal to soft-in-the-middle conservative. But the name the eye settles on again and again is that of New York Gov. Mario Cuomo.
The prospect of Cuomo on the court quickens the pulse of ardent liberal Democrats and the governor’s many pressroom idolators. And that alone ought to be enough to disqualify the governor.
By all accounts, Cuomo is in every respect an estimable and honorable man. But his nomination would raise the Washington Big Top and produce a circus of Borkian proportions.
Clinton could tap Cuomo if he wants to witness a two-week, televised discussion of the merits of the death penalty. (Cuomo is against it; Clinton is for it.)
He could reach out to Cuomo if he wants to engage the Republicans in swirling, spitting, made-for-CNN debates on constitutional posers from the right to privacy to the role of the judiciary: Mario Cuomo meets Republican Sens. Strom Thurmond and Orrin Hatch and Alan Simpson in a Capitol Hill Grudge Match.
You could sell tickets to it. And you could even argue that such a confrontation might serve the body politic. For Clinton, however, it’s a scenario that needs a good leaving-alone.
His fledgling presidency doesn’t need this fight. And, as Justice Harry Blackmun acknowledged in an opinion last year, the realities of the actuarial tables suggest Clinton will get a second chance, and perhaps a third, before his term ends.
Beyond the speculative roster of candidates, Clinton dare not test the wisdom or the political mettle of Sen. Joseph Biden’s revamped Judiciary Committee.
Still scarred by the Clarence Thomas-Anita Hill fiasco, the panel remains a fragile and eerily self-destructive entity.
Simply stated, this group cannot cope with controversy; if Clinton had not followed Biden’s lead and yanked Baird’s nomination, the committee would have staged another of its institutional nervous breakdowns.
Time is on the president’s side. What Clinton needs this time around is an Anthony Kennedy or a John Paul Stevens equivalent.
If he wants a justice for the ages, or a black-robed symbol of some commitment to an ethnic group or gender, he’d be well advised to wait until another vacancy occurs.