Clinton & Court, Round 1

Justice Byron R. White announced on March 20 that he would retire this summer after completing his 31st term on the Supreme Court. Appointed by President John F. Kennedy in 1962, Justice White is the last remaining justice on the Court appointed by a Democratic president.

Justice White’s decision to step down opens the door for President Clinton to begin shaping the Court according to his philosophical and political inclinations. Given the ages of the remaining justices, there will most likely be at least one other opportunity for the president to name someone to the Court.

Justice White has been a consistent conservative on many issues coming before the Court, including abortion. Dissenting from the Court’s opinion in Roe v. Wade that the constitutional right to privacy embraced a woman’s right to choose abortion, Justice White called the decision “an exercise in raw judicial power” that was “improvident and extravagant.” “I find nothing in the language or history of the Constitution,” the Justice wrote in dissent, “to support the Court’s judgment.” “The Court simply fashions and announces a new constitutional right for pregnant mothers.”

Senator Joseph R. Biden Jr., chairman of the Senate Judiciary Committee, criticized Mr. Clinton for indicating on the record during the campaign that he would impose a litmus test on the abortion issue, “because,” noted Senator Biden “that will polarize opinion in the Senate.”

The New York Times reported that within hours after Justice White announced his retirement, senators from both parties predicted that if Mr. Clinton makes good on his campaign promise to name a justice who supports abortion rights ” a blood bath” would result.

According to the New York Times lawyers close to the White House are predicting that President Clinton will choose a moderate politician or judge, rather than a legal scholar to replace Justice White. The same sources speculated that the president will give priority to ethnic and sexual diversity in making his selection.

New York Governor Mario Cuomo, an early favorite for the nomination, has withdrawn his name from consideration.

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