One Steps Down. Who Steps Up?

Even before Supreme Court Justice Harry Blackmun announced his retirement last week, Bill Clinton was thinking about who would replace him. Not long after the start of the court's present term in October, Blackmun confided to the President that it would probably be his last. For those who did not get advance word, the imminent departure of the 85-year-old Justice was predictable from his passionate dissent on a death-penalty case in February. When he declared his categorical opposition to "the machinery of death," it was in the valedictory tone of a man writing with one eye on history and one foot out the door.

With Blackmun's departure, the court loses the man who is by most measures its most liberal member. And by one measure, as the author of the abortion- rights ruling, Roe v. Wade, also its most controversial one. The President has promised that any of his Supreme Court appointees will support abortion rights, but Clinton shows no inclination to provoke Republicans by appointing a red-hot liberal such as Harvard law professor Laurence Tribe. A room- temperature nominee is more what he has in mind for a court where power frequently rests with four or five moderate conservatives at the center and where some of the most contentious issues, abortion and church-state relations among them, have settled into a grumpy stalemate.

Though the White House quickly leaked a diverse list of potential choices, retiring Senate majority leader George Mitchell was the early front runner. A U.S. Attorney and a federal judge before becoming a Senator in 1980, Mitchell is popular with both parties on Capitol Hill. For a President looking for an easy confirmation, who could be better than a man who gets an occasional smile from Jesse Helms?

"Mitchell is Clinton's favorite in the true sense of the word," said an Administration official, who added, "but there are extenuating circumstances." The most serious of those circumstances is that Clinton needs Mitchell to shepherd his health-care plan through the Senate. The White House is adamant that he continue as a deal-making party leader until health reform is passed, even if that means delaying confirmation hearings until after the first Monday in October. Another problem is whether Mitchell, who voted in 1990 to raise the pay of Supreme Court Associate Justices from $118,600 to $153,600, can sidestep the Constitution's emoluments clause, which prohibits members of Congress from being appointed to a position for which they have recently voted a pay raise. The White House is confident he can get around that one by accepting the court's earlier pay scale.