Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SUNDAY, March 28, 1993 TAG: 9303290403
SECTION: EDITORIAL PAGE: B-3 EDITION: METRO
SOURCE: MATTHEW J. FRANCK
DATELINE: LENGTH: Long
The fact that White notified the president this early, rather than at the term's end in June or July as most retiring justices recently have, invites speculation that another retirement may be announced at that time, by Justice Harry Blackmun. Perhaps the two agreed to stagger their retirement announcements some weeks apart to give the White House and Senate a chance to consider nominees for a "White seat" and a "Blackmun seat" separately.
But that is mere speculation at this point. Even if White is the only justice to depart this year, the weeks ahead will have a powerful effect on the future shape of the law in America. They will also reveal much about the first Democratic president to nominate someone to the Supreme Court since Lyndon Johnson - and about a Democratic Senate that will be the first since the Johnson years to receive a nomination from a president of its own party.
A high-court nomination is an infrequent opportunity for citizens to see all three branches of our national government interact. It can bring out the best or the worst in them: in the executive and Senate as they make their choice; in the judiciary afterward, depending on the choice the others make.
Precisely at this moment of his departure, White should be the model for the choice of his successor.
Already, the majority of press reports describe him as part of a "conservative bloc" on the court. But the political labels "liberal" and "conservative" are frequently inaccurate in characterizing the justices and their decisions - and "conservative" is peculiarly inappropriate for tagging White.
Those of us who study and teach constitutional law know that the one thing we could say with certainty of White's politics is that we didn't know what they were. It's not so much that he was unpredictable, as some say, but that he was exactly predictable in one respect: He called the cases as he saw them based on the Constitution alone, with no personal notion of justice or other such considerations intruding on his analysis.
In this he is not unique among current justices, but he is unique among the three most recent retirees: Former Justice William Brennan and the late Justice Thurgood Marshall were pre-eminently political. For them the political label "liberal" fit perfectly. But agree or disagree with one of White's opinions, one could never criticize him, as one could Brennan or Marshall, for deciding a case for extraconstitutional reasons.
The typical press reporting that White is a "conservative" seems to hinge on a few notable cases. He dissented in Miranda vs. Arizona (1966) and in Roe vs. Wade (1973), and he wrote the majority opinion in Bowers vs. Hardwick (1986). But White's opinions in these three cases show a true constitutionalist at work. The politicians were on the other side.
White dissented in Miranda because he found it inconceivable that the Constitution positively commands police officers to warn suspects of their rights, to fetch attorneys for them at the earliest opportunity, and to cease questioning whenever the suspect so desires - all requirements to be enforced by holding confessions inadmissible that no reasonable person could regard as coerced. In Roe, White objected to the manufacturing of an abortion right that can be found nowhere in the Constitution. In Bowers, White spoke for a court majority that could find nowhere in that same text any barrier to state laws against homosexual sodomy.
White's "conservatism" in these cases was only an interest in conserving the Constitution. It is impossible to glean from his opinions a commitment to any other agenda.
But there is a larger point here than defending the legacy of Justice White. The endless repetition that White was part of a "conservative bloc" that "turned the court to the right" in recent years legitimizes a search for a "liberal" nominee to replace him. Already, the organized groups who opposed Reagan and Bush nominees, and supported the Clinton campaign, are clamoring variously for a black nominee, a Hispanic, a woman - but are in agreement that he or she must be a "liberal," committed, for instance, to abortion rights and the gay-rights agenda.
Yet whatever the political background of the nominee, the proper requirement for service on the Supreme Court is that that background become irrelevant once the oath of office is taken. For from that moment forward, the only constituent of the new justice will be the Constitution - not any agenda for social change, liberal or conservative.
Whatever the views of the media and the pressure groups, the decision now will rest largely with two men: President Clinton and Senate Judiciary Chairman Joseph Biden, D.-Del. Here there is cause to be wary indeed.
During his campaign, the president "vowed to appoint only people who support abortion rights," reported The Washington Post on March 21 - an open litmus test, but in reverse, of just the sort suspected but never proved in the cases of Presidents Reagan and Bush. To his credit, Biden stated in his hometown paper (the Wilmington News Journal) on Dec. 6 that "imposing a litmus test of commitments on specific rulings is wholly inappropriate."
The president's more recent statements have softened the litmus test to one insisting on a commitment to a "right to privacy," but no one should be fooled by the euphemism. Justice White concurred in the "right to privacy" case of Griswold vs. Connecticut, a 1965 ruling overturning a ban on contraceptive use, but dissented from the extension of this right in the case of abortion. But we can be sure President Clinton, under pressure from his supporters on the left, will search for someone whose notion of constitutional "privacy" includes the abortion right.
Thus it will rest with Sen. Biden and his colleagues, if they take their own constitutional duties seriously, to enforce rigorously a "no litmus-test" standard on the president. We'll all be watching, to see whether Justice White is replaced by someone up to his own high standards.
Matthew J. Franck is an assistant professor of political science at Radford University.
by CNB