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White's Replacement

March 22, 1993



SUPREME Court Justice Byron White's announcement that he will retire at the end of the court's current term gives President Clinton an unexpectedly early opportunity to put his mark on the nation's highest tribunal. With Justice White's departure, the court's conservative wing will lose a vote, especially in areas such as abortion and the rights of defendants.

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White's sense of the court's role was summed up in a 1986 decision upholding Georgia's anti-sodomy law. Writing for the 5-to-4 majority, he noted: "The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution."

On that basis, he remained a staunch advocate of civil rights, for which he is to be commended. He backed expanded voting rights and busing as a tool for school desegregation. Unfortunately, that approach also was the basis for his opposition to the notion that the right to privacy also included a woman's right to choose abortion - beginning with his dissent from the majority opinion in the landmark 1973 Roe v. Wade decision.

As Mr. Clinton considers his nominee, he is right to look for someone with "heart." We also hope he gives greater weight to intellect, presence, stature, and an ability to grow than to demographics and a perceived need to return political favors.

Moreover, the notion of applying ideological litmus tests is a dubious one. Such tests pull the debate over nominees away from issues that bear more directly on their intellectual and legal qualifications. And such tests can ultimately prove meaningless: Despite White's strong civil rights record, which helped earn him the high-court spot under President Kennedy, he came to be criticized by many Kennedy liberals for his conservative votes.