White's Retirement Gives Clinton Opening to Add Liberal to Court
Conservative majority will not be seriously affected, scholars say
BOSTON — PRESIDENT Clinton will become the first Democrat since Lyndon Johnson to leave his mark on the high court when he appoints a replacement for Justice Byron White, who announced Friday that he will retire in June.
Justice White's decision gives Mr. Clinton a chance to replace one of the court's conservative voices with a more-liberal justice. That makes the opening more significant than one that could be brought about by the expected retirement in the next few years of Justice Harry Blackmun, whose replacement would likely share his liberal views.
"Clinton's appointment will have a tremendous impact," says Nan Aron, executive director of the Alliance for Justice, a liberal group in Washington. "White has been a reliable vote on the conservative side. His retirement whittles away at the conservative stronghold on the court and allows Clinton to begin fashioning a court that brings another viewpoint."
But although White reached generally conservative conclusions during his 31 years on the high court, constitutional scholars say he did not hew to any specific ideology.
"He was probably the most practical and the least ideological justice," says Vincent Blasi, a law professor at Columbia University. "He had a narrow view of the Bill of Rights, but he was not doctrinaire.... He was more conservative than liberal but not as conservative as [Chief Justice William] Rehnquist or [Associate Justice Antonin] Scalia.
Court-watchers say that White's loss will not seriously challenge the court's conservative majority, but may make a difference on some issues on which the justices have been narrowly divided in recent years. White's replacement could push the centrist bloc of Justices Sandra Day O'Connor, David Souter, and William Kennedy further to the left in those cases.
Chief among close issues in recent years is the separation of church and state. White has been one of the leading opponents of the fire wall the court erected between the two institutions over the past 30 years. He voted time and again to allow prayer in school and religious displays on public property.
"Assuming that Clinton does not appoint a conservative, we'll be moving away from a reinterpretation of the prohibition on mixing church and state," Professor Blasi says.
White's departure might also make a difference on the issue of abortion. White voted against the Roe v. Wade decision that established a right to abortion, and he favored overturning the decision. But his view was always in the minority. Last year, he was on the losing end of a 5-to-4 vote when the court upheld Roe v. Wade but allowed some restrictions on abortion.
"White's departure solidifies the pro-choice majority," says Jesse Choper, a law professor at the University of California at Berkeley.
His retirement may make the court more willing to limit other forms of state interference with personal conduct. For instance, White wrote the majority opinion when the court decided in 1986 to uphold a Georgia anti-sodomy law. And White cast a number of votes - including a dissent in the 1989 ruling extending constitutional protection to flag-burning - that demonstrated his belief in a limited interpretation of the First Amendment.
White's retirement may have less impact on criminal-justice cases. In his early years on the court, his strong law-and-order views were in the minority. For instance, he dissented in the famous 1964 Miranda v. Arizona decision, which forced police to read suspects their constitutional rights. But over the years, the rest of the court became less sympathetic to criminal suspects' rights. In 1984, White wrote a majority opinion creating a "good faith" exception to the "exclusionary rule," which bars police
from using illegally obtained evidence.
"White was pretty hard-nosed on criminal procedure," says Yale Kammisar, a constitutional scholar at the University of Michigan at Ann Arbor. "He was aligned with the majority on the [Warren] Burger and Rehnquist courts."
The search for White's replacement began Saturday when Clinton met at the White House with Vice President Al Gore Jr. and other top aides. During the presidential campaign, Clinton commented that Gov. Mario Cuomo (D) of New York "would make a good Supreme Court justice," and that he would pick only a nominee who supports abortion rights. On Friday, the president said: "We don't have a large bank of potential nominees."
Democratic legal activists speculate that Clinton, who has promised to diversify the federal courts, will turn to a minority. Among those mentioned: Marian Wright Edelman, president of the Children's Defense Fund and a friend of Hillary Rodham Clinton; federal Judge Amalya Lyle Kearse of New York; and Jose Cabranes, chief federal judge in Connecticut.
Other names have been mentioned, as well, including federal appeals Judge Richard Arnold of Little Rock, Ark., Walter Dellinger, a law professor working at the White House, and Laurence Tribe of the Harvard Law School. Knowledgeable sources say that Mr. Tribe, who was rejected for the job of solicitor general, is unlikely to get the nod because he alienated many Senate Republicans with his opposition to the Supreme Court nomination of Robert Bork in 1987.
Still, one Senate source says, "I think there is going to be controversy no matter whose name is submitted because of the way Supreme Court nominations are now viewed in a political context. Anybody who is sent up by the administration will be under attack by conservatives."