JUDGE BREYER REVISITED
When Justice Blackmun announced his retirement in April 1994, it came as no surprise. Privately, Blackmun had told President Clinton that this would be his last term at the Supreme Court. Moreover, he had publicly signaled his intention to retire quite soon in his concurring opinion in Planned Parenthood v. Casey.1
The search for Justice Blackmun's successor was essentially a replay of the nominating process a year earlier. First, there was a brief flirtation with a prominent political figure -- this time, Senate Majority Leader George Mitchell. Later, Bruce Babbitt seemed to re-emerge as the Clinton favorite. Then when opposition to Babbitt surfaced among Senate conservatives, as it had the previous year, Clinton backed away from Babbitt in favor of a candidate who would be easily confirmed. Finally, the president announced his intention to nominate another judicial moderate -- JudgeStephen Breyer -- who had substantial support among Republicans on the Senate Judiciary Committee and elsewhere.
Initially, the apparent front-runner for Justice Blackmun's seat on the Supreme Court was Senator George Mitchell. While campaigning for office, Clinton had made it clear that he wanted a Supreme Court nominee who had significant political experience as, for example, Earl Warren did before he became chief justice. Mitchell, who had just announced his plans to retire from the Senate, seemed to satisfy all of Clinton's requirements. Not only was he a seasoned politician but as Senate majority leader, he had experience in putting coalitions together, experience that Clinton thought would be valuable at the Supreme Court. Finally, Senator Mitchell seemed a safe bet for easy confirmation. Senatorial courtesy has such a long tradition that there was little likelihood that serious opposition would be mounted against Mitchell.