Late for his appointments: on Clinton's watch, slow's the word.

We are well into the second year of the Clinton administration; it's time Lloyd Cutler or someone in the White House told the president to stop frittering away one of his most important powers, the constitutional power to appoint federal office-holders. That may seem an odd piece of advice in the wake of the president's nomination of Stephen Breyer to serve as an associate justice on the Supreme Court.

Judge Breyer's confirmation process will probably be more like a love-in than a hearing. It will surely bear no resemblance to the rough treatment that Judge Robert Bork and Justice Clarence Thomas received when their appointments to the High Court were scrutinized by the Senate Judiciary Committee. For one thing, at the present moment the president and the Senate majority are of the same political party. A Republican president commended the nominations of Bork and Thomas to a Senate controlled by the Democrats.

As a clerk to Justice Arthur Goldberg, whose seat on the Court he has been appointed to occupy, Breyer has been labeled a "liberal" in some media accounts. It surely doesn't hurt Breyer that he's a Democrat or that he served as chief counsel to the Senate Judiciary Committee when Senator Edward Kennedy (D-Mass.) chaired it. But Breyer's nomination may actually help to break down the simplistic labeling of judges into political categories, such as "liberal" and "conservative." For example, Senator Orrin Hatch (R-Utah) finds Breyer far more acceptable than he would have Interior Secretary Bruce Babbitt, a point to which I will return. Breyer's narrow view of the antitrust laws and his commitment to deregulation make him the darling of the Chamber of Commerce. He also has a solid reputation for combining serious attention to the details of the cases before him with a subtle appreciation of the human dimensions of the law. His appointment will cause few, if any, ripples in the Senate, which will probably confirm him in a vote as lopsided as the margin by which Justice Ruth Bader Ginsburg was confirmed last year (96-3) or by which Justice Scalia was confirmed eight years ago (98-0).

But the Supreme Court is not the only post subject to the presidential appointment power. The smooth transition of power from one president to another should normally occur within sixty to ninety days at most. When the transition represents an important political shift, as with the shift from Carter to Reagan, the newcomers are usually all the more eager to get their hands on the levers of power as quickly as possible to execute their mandate promptly. The Clinton White House has been curiously sluggish in handling one of the most significant powers of the presidency.

Seventeen months into this administration, there is still squabbling going on about how to fill a number of important positions in the government. For example, the Equal Employment Opportunity Commission still lacks a chair. And the National Labor Relations Board got its new chair, Stanford law professor William Gould IV, a few weeks ago, after he had been left dangling in the wind while the White House staff pondered what to do with completely unfounded criticism of him. Gould is widely acknowledged as a renowned scholar in the field of labor law, and his reputation for fairness is exceeded only by that of John Fanning, the able chair of the NLRB for decades, whom President Ronald Reagan sacked promptly after taking over the reins in 1981.

Who can forget the fiascos at the Justice Department, first over finding an attorney general who had paid her nanny taxes or who didn't have to because she didn't have any children, and then over Lani Guinier, who wasn't exactly going up for tenure as a law professor, but who was being asked to run the Civil Rights Division?

There are some things that the White House staff still just doesn't get. For example, they obviously don't grasp the benefit of treating ambassadorships as an important political responsibility. I'm not talking about going back to the bad old days excoriated in the 1950s' novel The Ugly American, in which the ambassador was embarrassingly ignorant of the language, history, and culture of the host country. I am thinking instead of people like Sargent Shriver in Paris, or Daniel Patrick Moynihan or John Kenneth Galbraith in New Delhi, the sort of people whose sheer intelligence and clout enhance the respect that we have for foreign nations and that they have for us.

In the name of exalting expertise in foreign relations, President Bill Clinton agreed with Secretary of State Warren Christopher to reduce the number of political appointees to ambassadorships drastically from over eighty to only twenty-six. Far from promoting sharper analysis of foreign affairs, this one move represented a capitulation to the foreign service bureaucrats who are rewarded with longevity by their docility to the folks at Foggy Bottom. Under a policy begun in the Carter administration, foreign service officers are subjected to an "up or out" policy which has had the devastating effect of eliminating from the foreign service those with imagination and daring, and guaranteeing the success of the toadies who follow the leader, whoever that might be. Neither the president nor Mr. Christopher seems to grasp the significance of having people at foreign posts who are trusted political advisors, whose cable traffic either of them might actually like to read, and whose phone calls they would certainly return promptly. Is it any wonder that this administration does not yet have a foreign policy?

Of the twenty-six ambassadors to whom political influence is permitted, the president agreed with his wife Hillary that thirteen of these must be women. There is obviously nothing wrong with promoting excellent women to ambassadorships. Jean Kennedy Smith seems to be getting on famously in Dublin, as is Pamela Harriman in Paris. But one of the downsides of the rigid quota system that this administration has adopted is the crippling of the appointment process itself. My point is not that, as a sheer consequence of being out of power for twelve years, there are a lot more than thirteen men in the Democratic party who are capable of serving their country well as ambassadors. That's obvious, but the same can be said of Democratic women. My real gripe is that the nation is ill-served by having so many important posts vacant for so long, which is an inevitable corollary of trying to meet rigid quotas. For example, what message do we send our special friends, the Brits, when we send an ambassador to Dublin, Paris, and Berlin long before we send one to London? (We still do not have an ambassador to the Court of St. James, and rumor has it that the front runner is a retired admiral who is more famous for failing asleep in board rooms than for his acuity as a diplomat; Gilbert and Sullivan would have loved it, but will John Major or his successor?)

Another thing that the White House apparently doesn't yet realize is that federal judges are really appointed by the Senate with the advice and consent of the president. In the power vacuum on appointments created by the Clinton administration, it is no wonder that Republican senators on the Judiciary Committee have required a slowdown in processing the nominations of federal judges at the pace employed by the Judiciary Committee back in 1992, when Senate Democrats tried to frustrate the appointments by President George Bush. What goes around comes around.

To return to the appointment of Judge Breyer to the Supreme Court: while Lloyd Cutler is at the business of impressing the president with the importance of the appointment power, he should deal with the constant leaks of information and disinformation about prospective candidates that have been emanating from the president's staff. These leaks don't need the draconian response of President Richard Nixon's plumbers or of President Reagan's lie detectors. But it is simply appalling that the presidential appointment power, even to such high posts as the Supreme Court, has been reduced to the trial balloon method. That tool may be useful for testing the validity of novel ideas about public policies. It is quite another thing for the White House staff to send one of the most valuable (if one of the most controversial) members of the president's Cabinet, Bruce Babbitt, up the flagpole to see whether anyone will salute him or shoot him down. Ditto for eminently capable judges like Richard Arnold, chief judge of the United States Court of Appeals for the Eighth Circuit, or Jose Cabranes, chief judge of the United States District Court of Connecticut, or - for that matter - Judge Breyer the last time around.

Instead of providing bold, "take-charge" leadership in an Oval Office that knows how to move the ball on appointments, the Clinton administration has been plagued by a hesitant and clumsy bunch of neophytes in the basement of the White House who squabble with one another about manifestly illegal quotas, and who haven't yet comprehended that the president and the nation would be better served by a big cork placed firmly in their very indiscreet mouths. This may be the first time in the history of the presidency that rigor mortis in the White House staff has actually caused the death of the body.