Restoring Balance to a Controversial Court : White’s intention to resign gives Clinton a big opportunity

Just two months into the first Democratic administration in 12 years, U.S. Supreme Court Justice Byron R. White, one of only four justices appointed by Democratic presidents in the last three decades and the only Democrat still on the bench, announced he will resign this summer at the end of the court’s current term. Although in recent years White reliably voted with his conservative, Republican colleagues, the timing of his resignation--coinciding with a Democratic presidency--appears to be no mere coincidence.

White trained at Yale Law School in the 1940s, an era when many saw law as an instrument of social policy and held ideological “balance” as a cardinal virtue. Appointed to the court by President John F. Kennedy in 1962, White was, many say, exactly what Kennedy wanted for the court--a smart, progressive liberal. He also was handsome and athletic--a famous all-American football player at the University of Colorado.

Once on the court, White became somewhat of a puzzle. He sided with the Warren court majority in many of its school-desegregation and voting-rights decisions. But as the years passed, White moved sharply away from liberalism, strongly opposing abortion rights for women and a right of privacy for homosexuals, voting in support of voluntary prayer in public schools and against remedies for racial discrimination. Did White’s views on civil rights change over the years, pushing him toward the right? Do the passage of time and shifts in public opinion inevitably recast moderates as conservatives? Or were White’s decisions driven by a strong belief in legislative supremacy over judicial constructions of equality and personal liberty?

White’s 31-year tenure--not far from the record set by Justice William O. Douglas, who served 36 years--is a reminder that when the Founding Fathers provided life tenure for federal judges, life was often considerably shorter than it is now, the 34-year tenures of 19-Century Justices John Marshall and Stephen J. Field notwithstanding.

In recent years some justices such as Warren E. Burger grew weary of the routine and left to pursue other interests. But others have simply grown older and sometimes frailer, often struggling to recognize the moment when resignation best serves national and personal interests. For White, 75, in whatever calculus of the personal and the political, that moment came Friday.

His resignation presents President Clinton with a historic opportunity to make the first Democratic appointment to the court since Lyndon B. Johnson named the late Thurgood Marshall in 1967. A second opportunity may soon follow; Justice Harry A. Blackmun, 84, has said he doesn’t intend to stay “much longer.”

Clinton has repeatedly promised that he would appoint justices who share his support for abortion rights; the widespread perception was that Presidents George Bush and Ronald Reagan applied anti-abortion litmus tests to their nominees. While some regard Clinton’s promise as a litmus test of another kind, the President’s announcement Friday that he will appoint a “truly outstanding American” to fill White’s seat should be heartening to all who value the qualities of balance, integrity and intellect above ideology.

Above all, the appointment of a man or woman of indisputable ability and compassion may help restore a measure of balance to the high court, moving it beyond some of the pitched ideological battles of recent years.