COLUMN RIGHT/ TERRY EASTLAND : Diversity Ball Is in Clinton’s Supreme Court : Will the drumbeat cause the best liberal to be bypassed? A quandary for Republicans.

Justice Byron White’s decision to retire at the end of the Supreme Court term will test both President Clinton, who must select the new justice, and Senate Republicans, who for the first time since 1967 will vote on a Democratic President’s nominee.

Clinton’s selection will reveal just how committed he is to pursuing the jurisprudential legacy available to all presidents through their judicial choices. Necessarily, a President intent on that goal will have a judicial philosophy, and Clinton’s is a plainly liberal one.

Clinton judges, he has said, would believe in what he calls “an expansive view of the Constitution” and “the constitutional right of privacy.” Conflating law and policy (something judicial liberals often do), Clinton has laid down his own litmus test in saying he wants judges who are “pro-choice.”

But Clinton also has said that not only philosophy but also diversity will matter in his judicial selection. For those just arrived in Clinton’s America, diversity is code for anyone other than a white person, unless she is female.

Here lies danger for Clinton. His party has many “diversity” persons who are lawyers and share his judicial philosophy. But would the best person from this pool be better than the best person from the much larger pool of non-diversity persons (white males) of judicially liberal views?

Smart liberals know that an intellectually gifted liberal is the best choice. Their ideal is someone (diversity aside) who could challenge the court’s leading intellectual, Justice Antonin Scalia, while forging majorities with the often centrist trio of Sandra Day O’Connor, Anthony Kennedy and David Souter.

But if the drumbeat for diversity within his party (and from his wife) that determined the choice of attorney general also determines White’s successor, Clinton could find himself selecting someone merely liberal, and not the ideal liberal. If that happens, Clinton will repeat Ronald Reagan’s 1981 mistake when he allowed his campaign promise--to appoint the first female justice--to control his selection. Judicial philosophy was subordinated to gender as O’Connor, arguably then the best judicial conservative who was a female but not the best judicial conservative, period, was chosen over--among others who then could easily have been confirmed--Robert H. Bork.

Whomever Clinton does pick will present a challenge for Senate Republicans, especially those on the Judiciary Committee. Experienced in supporting judges selected by Republican presidents, they have proved extremely deferential to Clinton’s executive-branch nominations.

They will make a huge mistake if they fail to adjust to the new circumstance of a Democratic nominee for the court by quitting their deferential ways and asking tough questions about judicial philosophy. And here it must be said that the Reagan and Bush administrations’ argument that the Senate should not consider philosophy when passing on nominations was quite wrong: The Constitution does not bar senators from focusing on that aspect of a nomination--which, if Clinton makes best use of his power to choose a nominee--will be most important.

Judiciary Committee Republicans should carefully probe, among other things, the nominee’s view on the philosophical matter that Clinton has said is most critical to him, the right of privacy.

For starters, they should begin, devilishly, by asking a question that makes use of White’s dissenting opinion in the landmark abortion case, Roe vs. Wade: “Do you agree with Justice White’s view that the majority’s extension of the right of privacy to include abortion was ‘an exercise in raw judicial power,’ and if not, why not?”

Using the same approach, they should also ask a second question: “Do you agree with Justice White’s opinion for the court in Bowers vs. Hardwick (1986) in which he declined to extend the right of privacy to include homosexual sodomy, and if not, why not?” And a third: “What else should judges enforce as a privacy right? Bestiality? Pornography? Taking illegal drugs?”

Such questions--and others like them, making similar use of language from White’s opinions--could show how “expansive” the nominee’s approach is to constitutional interpretation. They could also illumine the vast difference between the judicial philosophy of a Kennedy Democrat (White was appointed by President Kennedy) and a Clinton Democrat.

Having posed such questions, Republican senators may or may not decide to vote against the nominee on the basis of his (more likely, her) judicial philosophy. But at least they would have risen to the occasion of supplying intelligent scrutiny of a Supreme Court nominee, an important precedent if, as expected, Clinton has second and third opportunities to name new members of the court.