One Steps Down. Who Steps Up?

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Though Clinton is anxious not to repeat the spectacle of last year's 13-week search for someone to replace Byron White, which left the road to the high bench littered with bruised rejects, White House officials took pains to deny that their focus had narrowed to Mitchell. But few other names on the Administration's short list seemed likely. Interior Secretary Bruce Babbitt was quick to say he didn't want the job. Federal appeals court Judge Richard Arnold has the post-Whitewater disadvantage of being a Friend of Bill's from Arkansas. The most serious second contender is Jose Cabranes, a Puerto Rican- born federal district judge in Connecticut who would be the first Latino to serve on the court. While Clinton could win some advantage with Hispanic voters by choosing Cabranes, his record on the bench is so moderate that he was also on George Bush's list of potential nominees. Though Cabranes has spoken sympathetically about the concerns of women and gays, Clinton would have to be thoroughly convinced that the judge is not a closet conservative in order to avoid repeating, in mirror image, the famous mistake of Dwight Eisenhower. The Republican President decided it would help him win the 1956 election if he gave a court seat to an Irish Catholic: William Brennan, who turned out to be one of the century's most effective court liberals.

Whoever follows Blackmun will find a court in which the sharp divisions of 10 years ago have subsided for now and the ideological direction is hard to discern. The centrist bloc that has emerged includes Anthony Kennedy, Sandra Day O'Connor, David Souter and probably the most recent new Justice, Ruth Bader Ginsburg. She is almost certainly a supporter of abortion rights. Since she replaced Byron White, an opponent, the court majority to uphold Roe v. Wade appears secure for now.

Even when the Justices have voted together in recent cases, however, they have been more given to writing separate opinions -- a sign that no one is . pulling like-thinking members into line. One important factor in favor of Mitchell is his Capitol Hill reputation as a consensus builder who might be able to fashion rulings that would attract the centrist jurors. Some of the skills of Senate horse trading -- "you get my vote on bill A for your vote on bill B" -- are of no use, though, in building alliances at the court, where Justices attract support by shaping decisions to neutralize the doubts of wavering allies."Ideas are the coin of the realm, not trades," says Yale law professor Akhil Amar.

Whatever talents Mitchell may have as a conciliator, it is too soon to tell whether he can guide the court to new alignments on the most divisive issues coming its way, including gays in the military, the right to die and how to adjust the line between church and state. And after those? For Presidents, the most intractable problem of choosing court nominees is that no one can predict what issues will grip the court in years to come. Abraham Lincoln put five men on the court, all chosen to support his policies during the Civil War. All of them did. But after his death, some of them were still serving on the court when a rapidly industrializing nation was caught up in unforeseen battles concerning the rights of labor and the power of states to regulate businesses.