Clinton Strongly Weighing Politician for Court Choice : Judiciary: Selection of Mitchell would mark a break with recent precedent. His experience in dealing with social issues is seen as a big plus.

By DAVID G. SAVAGE

April 8, 1994 12 AM PT

TIMES STAFF WRITER

WASHINGTON — President Clinton may be about to break with recent precedent and return to an older, more established precedent.

Before the 1950s, a President typically chose for the Supreme Court a prominent politician, a high government official or a nationally known attorney.

For example, the high court of 40 years ago was led by a former California governor, and included three former U.S. senators; two former U.S. attorneys general, one of whom had been the chief prosecutor at the Nuremberg war crimes trial; a U.S. solicitor general and a former chairman of the Securities and Exchange Commission.

At the time, the only justice who had not won election or held a high government post was Felix Frankfurter, a Harvard law professor who had helped found the American Civil Liberties Union and had gained a national reputation when he defended anarchists Sacco and Vanzetti.

By comparison, the Supreme Court nominees of recent years have been unknown to most Americans. Seven of the nine current justices were judges on U.S. appeals courts. One came to Washington from a state appeals court. And one held a mid-level Justice Department job.

Only one of the current justices has ever won an election: Sandra Day O’Connor is a former Arizona state senator. Only one has ever held a top post in the U.S. government: Clarence Thomas once served as chairman of the Equal Employment Opportunity Commission.

But Clinton is strongly considering filling the seat being vacated by retiring Justice Harry A. Blackmun with a consummate legislator and politician: Senate Majority Leader George J. Mitchell, a Maine Democrat who has also served as a federal prosecutor and a federal trial judge in Portland.

Mitchell’s broad background in politics and law has made him exceedingly attractive for the nomination in the eyes of White House advisers and some court watchers.

“He would bring a unique combination of legal and real-world experience to the court,” said Elliot Mincberg, legal director for People for the American Way. Those qualities, Mincberg said, are in relatively short supply on the current court.

“I think it’s a great idea,” said American University law professor Hermann Schwartz. “Those who come from the bench or academia tend to have a narrow, isolated view of the law. The Supreme Court has to confront the big social and human issues and it’s better to have someone who has been bruised up a bit in the hurly-burly world of politics, someone who has seen the law at work in society.”

Some court observers think otherwise, fearing that the appointment of a politician to the court could tarnish its standing. Many Americans, they believe, have come to expect that politicians and justices will be kept separate.

“I think it could cast some suspicion on the legitimacy and neutrality of the court,” said Bruce Fein, a conservative legal analyst. “It could also give an appearance of political packing if the justice, as a senator, has already staked out political positions.”

Fein questioned whether politicians, by temperament, are suited for the court.

“You have to have some enthusiasm for the life of the scholar--reading, thinking and writing,” Fein said. “If you have a short attention span and your strength is massaging the egos of other politicians, then you are not going to be a constructive justice.”

For their part, White House officials sought to dampen speculation that Mitchell is the sure nominee.

“It’s unfair to Sen. Mitchell and everyone else to say this is a one-person decision,” said presidential adviser Bruce Lindsey. He told reporters that as many as 10 to 12 people are being considered, although he acknowledged that Mitchell is the front-runner.

Some of the politicians who have joined the high court have become true stars, while nearly as many have become dismal failures.

Charles Evans Hughes, chief justice during the 1930s, had served earlier as New York’s governor and U.S. secretary of state. He ran as the Republican candidate for President in 1916. When chosen to lead the Supreme Court in 1930, he replaced another highly successful chief justice, William Howard Taft, the only former President to serve on the high court.

In 1937, President Franklin D. Roosevelt ran into sharp criticism over his first court appointee: Sen. Hugo Black of Alabama. Known as a populist and highly partisan New Dealer, Black was soon forced to admit that he once had been a member of the Ku Klux Klan.

But, confounding expectations, Black proved to be a devoted and principled jurist who spent countless evenings reading constitutional history in the Library of Congress. A champion of free speech and the Bill of Rights, he established himself as a true leader of the court during his 34-year career.

President Harry S. Truman turned to political friends when Supreme Court seats came vacant, but with disappointing results.

As a freshman senator from Missouri, Truman had sat next to a freshman from Indiana, the congenial, tobacco-chewing Sen. Sherman Minton. In 1949, Truman called his friend “Shay” and offered him a seat on the Supreme Court. Unfortunately, Minton accepted.

“His seven-year stint on the court has been universally and justly regarded as a failure,” wrote historian Henry J. Abraham in his book, “Justices and Presidents.” Though a pleasant man and a good politician, Minton was “devoid of judicial powers,” he said. Apparently, even Minton agreed, noting in his 1956 resignation letter that there will not be much “interest in my passing. I’m an echo.”

The last prominent politician to go to the high court was California Gov. Earl Warren in 1953. A bold, if controversial, chief justice, Warren led the court in making sweeping changes, beginning with the 1954 Brown vs. Board of Education ruling that overturned a century of racial segregation.

Warren had the “broad vision and self confidence to shake up the system,” said Georgetown law professor Louis M. Seidman.

But conservatives are wary for much the same reason, arguing that politicians often do not see a clear line between law and politics. They point to President Dwight D. Eisenhower’s own reflection in calling the Warren appointment “the biggest damn fool mistake I ever made.”