The idea of using the courts as an engine of social change has great appeal to the Clintons, especially at a time when the federal budget deficit prevents the president from ramming a New Deal or Great Society through Congress. One of the real remaining powers of the presidency is to shape the courts-and particularly, with luck, the highest court. Last Friday at 8:30 a.m., President Clinton got his first big chance to use that power. Justice Byron White summoned a lawyer from the White House counsel’s office and quietly told him that, after 31 years on the Supreme Court, he would step down at the end of the court’s term in June.
It was a typically low-key gesture from White, who hates his football nickname, “Whizzer,” and once walked out of his own party when former law clerks began screening old newsreels of his gridiron heroics. A Yale Law graduate himself, White was an early activist for civil rights, appointed to the high court by John F. Kennedy in 1962. But as the law moved to the left in the 1960s and ’70s, White wouldn’t go with it. Today he is called a conservative, though he was loyal enough to his political party to delay his resignation until a Democratic president could pick his successor.
White’s resignation gives Clinton the chance to begin reversing the Reagan-Bush judicial revolution. The last two presidents picked 70 percent of the judges now sitting in federal courts, including five of the nine justices at the Supreme Court. Under William Rehnquist, who was elevated to chief justice in 1986, the conservatives set out to squelch the liberal impulse to use the courts to fix social problems. Last week Clinton did not announce a short list, other than to say he wanted a justice with a “big heart,” but any Clinton appointee is sure to be pro-choice on abortion and sympathetic to the rights of minorities and women (box).
By giving notice three months before the end of the term, White wanted Clinton to have plenty of time to choose his successor. The three newest justices on the court didn’t take their seats until midterm, thanks to the usual confirmation battles. The Clinton White House, which has not exactly been known for the speed of its job-selection process, expects to name a new justice within a month.
With another justice-Harry Blackmun, 84-on the verge of retirement and 116 vacancies on the federal bench (14 percent of all federal judgeships), Clinton will have many more opportunities to shape the law. Gays, blacks, the terminally ill seeking the right to die, the press and the criminally accused are all likely to benefit from a more liberal judiciary. So will lawyers. With judges willing to entertain novel legal theories, the possibilities for litigation will multiply.
At the Supreme Court, a single new justice could provide the swing vote in cases where the court is closely divided. Chances are Clinton’s selection will take a different tack from White on a number of sensitive areas, like affirmative action, where the court often splits 5 to 4. Although White was once the Justice Department’s top civil-rights enforcer under Robert F. Kennedy, he opposes “group preference”-favoring women or minorities-to overcome the effects of past discrimination. White has supported voluntary school prayer and in many close cases has accommodated a gradual dismantling of the wall between church and state. On privacy, White has voted for a heavy government hand. He wrote the court’s 1986 opinion upholding Georgia’s ban on sodomy. Since the 1973 Roe v. Wade decision, he has consistently opposed abortion rights.
It is in the controversial arena of abortion that Clinton’s new judges may have the biggest impact. The issue will resonate less in the high court, which last summer disappointed pro-life activists by upholding the basic principles of the Roe decision, than in the many lower courts that enforce the law on abortion. Under the Casey decision last year, it is up to trial judges to determine whether state abortion regulations impose an unconstitutional “undue burden” on women. The lower courts will have to interpret not only those rules but thousands of other state and federal regulations-on business practices, the environment, job safety and the rights of labor unions and federal employees. Reagan and Bush appointees tended to defer to elected lawmakers. Clinton’s choices are likely to take a more expansive view of the power to interpret the law and Constitution. Clinton’s nominees to these courts, says Kenneth Starr, U.S. solicitor general in the Bush administration, “may tell us more about the president’s judicial vision than any single appointment to the Supreme Court.”
The best clue to Clinton’s judicial vision may have come in a Denver debate last year with Democratic rival Paul Tsongas. Questioned about what sort of judges ought to be appointed to the federal bench, Tsongas blamed Ronald Reagan for creating “courts with all these right wings.” A plane with only one wing cannot fly, Tsongas said; it is too unstable. But then Clinton interrupted. Simply ensuring stability, he insisted, is not the role of the Supreme Court. “Sometimes it is to be a radical force,” he said-to tug when people resist social change. Spoken with the passion of a Yale Law professor-or Bill and Hillary on a study date.
