On Second Thought

By Richard Lacayo

The call from the President came shortly before midnight on Wednesday. For nearly a month Bruce Babbitt had been heralded as the inside favorite to fill the coming vacancy on the Supreme Court, and now Bill Clinton wanted to talk to him. Could he come over to the White House? Minutes later, Babbitt, in chinos, and Clinton, wearing jeans and an open-collar shirt, were sitting in the upstairs kitchen, carving up the remains of a mangled apple pie, drinking decaf and watching the late, come-from-behind victory of the Phoenix Suns over the Houston Rockets.

The two men meandered into the President's study, then spent more than two hours in one of Clinton's trademark, late-night rap sessions. Clinton questioned Babbitt on everything from the Interior Department, which the former Governor of Arizona heads, to the history of the Supreme Court. They talked about possible candidates for the court, previous nominees, the 20 or so Senators who would oppose a Babbitt nomination out of pique over his Western-lands policy, the politicians appointed to the high court in the past. Finally, at about 2:30 a.m., with Clinton unflagging, Babbitt departed. Friends say he left feeling that while he still had a good chance at the nomination, the President would lean a long way toward his old friend, Judge Richard Arnold of Arkansas. Not until Friday -- at the tail end of the week in which he had promised a decision -- would Clinton make up his mind.

Even for most of Friday, the President was still undecided. Indeed, it seemed that no one was out of the running. Babbitt was in it; so was Arnold. And then at about 3:45 p.m., with the Oval Office still crowded with members of his selection team, the President asked to be alone. When he summoned them back half an hour later, he said, "I've decided to go with Breyer. I feel comfortable with that."

With those words ended another tortuous episode of indecision in the Clinton White House. Though few who know Stephen Breyer doubt his brilliance as a jurist, the President seemed to lack any compelling reason to prefer him. A Babbitt nomination would have gone further to satisfy the President's stated desire to put someone on the court who had real-world experience as a consensus builder. Arnold, who was once Clinton's law professor, was the choice closest to the President's heart.

If there was any single advantage that Breyer had in Clinton's eyes, it was that he would stir little controversy and consume little of Clinton's dwindling store of political capital in the Senate. Above all, the President doesn't want a messy confirmation fight. On that score Breyer, a onetime chief counsel to the Senate Judiciary Committee, which will vote on his nomination, can't be beat. In fact, he has the support of such ideological opposites as Orrin Hatch and Ted Kennedy.

Still, the President hadn't been all that comfortable with Breyer when he considered and rejected him last year for the Supreme Court seat he eventually offered to Ruth Bader Ginsburg. In a face-to-face meeting at the time -- which took place just days after Breyer had suffered two broken ribs from being struck by a car while riding his bicycle -- Clinton found the judge to be "stiff and a little too eager," says a White House official involved in the selection process. "He also came across as very much of an intellectual ! who flits from issue to issue, whereas Ruth Bader Ginsburg was dispassionate, quiet and grounded. Clinton thought you would hire Steve Breyer to be a law professor. But he found Ruth more judgely." And so, last year, Clinton did not choose Breyer.

In the 37 days between the time Justice Harry Blackmun announced his retirement and the Breyer choice last Friday, Clinton appears to have decided, and then changed his mind, over and over again. Each time, he or his top aides leaked his apparent preference with greater and greater certainty, only to pull back at the last minute. Soon after Clinton's first choice, Senate majority leader George Mitchell, announced that he didn't want the job, debates within the Administration turned on whether to seek an appointee who could forge coalitions on a divided court or to find a suitable black, Hispanic or female candidate.

By early last week it was clear that Clinton had reduced the field to Arnold, Babbitt and Breyer. Each had drawbacks. For Arnold, it was his health. He is under treatment for lymphoma, a form of cancer. He had also raised the suspicions of some women's groups with two of his opinions on the bench, one that upheld a parental-consent statute regarding teen abortions and another that permitted the Jaycees to exclude women. With Whitewater still an unresolved issue, there were also rumblings in the Senate about the propriety of the President bringing to Washington another of his friends from Arkansas. For good measure, the Wall Street Journal reported that in the 1970s Arnold had made $500,000 in the commodities market, though the paper gave no reason to believe there was anything amiss about his earnings.

But it was a Babbitt nomination that raised the most worrisome prospect, a real confirmation battle. Last year the Interior Secretary angered Senators from Western states by trying to raise fees for grazing, mining and water rights on federal lands. As Babbitt pulled out in front of the other choices last week, Utah's Hatch, the ranking Republican on the Senate Judiciary Committee, predicted a fight. Though minority leader Robert Dole told the President privately that Babbitt could still be confirmed, probably by a vote of 80 to 20, the White House remained concerned about the possibility of a revolt spreading among Senate Democrats from Western states. The battle over land-use fees last year had grown so fractious that at one point a Senate Democrat told the White House it could never count on his vote again. Asked why, the Senator replied, "I'll give you three reasons: Babbitt, Babbitt and Babbitt."

It didn't seem to occur to the disgruntled Senators that they should have been pleased by the prospect of getting Babbitt onto the court and away from land-use policy. "This isn't about logic," said a White House aide. "This is about personalities and personal relationships." By Thursday night it was looking like no for the Secretary. "They trial-ballooned the Babbitt thing," said an aide to a Western Senator. "It definitely popped."

In contrast, Breyer looked more and more attractive. His chief problem, the nanny factor, was the least troublesome. When he was under consideration for Byron White's seat last year, Breyer had been snagged for unpaid Social Security taxes for a cleaning lady. He subsequently paid the taxes, only to have the IRS later determine that he had not in fact owed the money; the IRS refunded it.

As Friday morning arrived with no clear front runner, a mood of frustration set in at the White House. One official called the previous 72 hours "three days of torture." Finally, after deciding that the questions hanging over Arnold's health were serious enough to disqualify him, Clinton was ready at last to give Breyer his O.K. He called the judge, their first contact since their uncomfortable meeting last year, then got on the phone to the two losing candidates. Babbitt was able soon after to joke with friends about his experience. "I knew I had been cut," he told them, "when George Stephanopoulos referred to me as 'Secretary Bobbitt.' "

Breyer, 55, has come back from nowhere before. At the time of the 1980 elections, he was one of a group of Jimmy Carter's federal court appointees who were still awaiting confirmation when the Democrats lost the Senate and the White House. The other nominees were left in limbo. Largely with the help of Ted Kennedy, Breyer alone was approved by the Senate, where both Democrats and Republicans knew him from his days with the Senate Judiciary Committee, of which Kennedy was then the chairman.

A man who has read Proust in French and can hold forth knowledgeably on the merits of a bottle of Chateau Latour, Breyer is the son of a San Francisco lawyer. With his mother's encouragement, he attended Stanford University instead of Harvard, where she was afraid he would lose himself in books. Before going on to Harvard Law School, he spent two years at Oxford. His ! enduring affection for things British is evident in everything from his tailoring to the trace of a British accent that sometimes inflects his speech to his wife Joanna, a clinical psychologist at the Dana-Farber Cancer Institute in Boston; her father, Lord Blakenham, was once leader of Britain's Conservative Party.

After a period as clerk for then Supreme Court Justice Arthur Goldberg, Breyer moved on to congressional staff work. It was his proudest achievement there to be architect of the plan by which Congress deregulated the airline industry in 1978. He has got more mixed grades for his work as a member of the U.S. Sentencing Commission, which established the federal guidelines that require judges in all parts of the country to hand down roughly equivalent sentences for comparable crimes. Many judges are furious over the guidelines, which they complain force them to issue sentences that do not take into account the differing circumstances of individual defendants. Because they mandate lengthy sentences for first-time drug offenders, the guidelines are also blamed for contributing to the huge growth of the American prison population.

Breyer's critics consider him brilliant but passionless, given to formulas and fine distinctions but lacking an overall vision of the Constitution. "It was no coincidence," says a colleague on the Harvard Law faculty, "that he only taught antitrust and administrative law." (Breyer also carved out a course area for himself in economic regulation.) As a judge he has shown little interest in such issues as civil rights, privacy or the First Amendment, which have provided most of the fireworks on the high court for the past four decades. The First Circuit of Appeals in Boston, where he sits, is also one that receives few high-profile cases. For instance, since none of the states in his circuit has the death penalty, Breyer has never ruled on the issue. On almost every question of consequence on which he has pronounced himself, he has rulings that place him on both sides, which might be evidence of either intellectual scrupulousness or a lack of all conviction.

Though he is presumed to support abortion rights, for instance, Breyer seems unlikely to defend them as vigorously as Blackmun, who wrote Roe v. Wade. In 1990 Breyer rejected a Bush Administration "gag rule" that would have prevented the staff at federally supported family-planning clinics from even mentioning abortion. But a year earlier he dissented from a ruling that . granted a new hearing on the burdens imposed by a law requiring that minors notify both parents before undergoing an abortion. Accordingly, abortion- rights groups are viewing him with some trepidation.

On a court where power is already settling into the hands of an expanding group of moderates, Breyer's carefully parsed jurisprudence might prove more persuasive than an impassioned style in easing the moderates in the liberal direction many Clinton supporters are hoping for. That could be the President's hope. After the long, bumpy and very public selection process last year that ended with the appointment of Ruth Bader Ginsburg, he told a roomful of his aides, "That just goes to show that if you give me enough time to make me feel great down here," -- holding his gut -- "it will work out." Breyer, who probably didn't feel too great the last time the President chose a court nominee his way, surely feels much better this time.

With reporting by James Carney, Michael Duffy, Dan Goodgame and Julie Johnson/Washington and David Gross/Boston