Invoking the Clinton Precedent


AS WE AWAIT President Bush’s nominee to replace Supreme Court Justice Sandra Day O’Connor, all the talk is about precedent. Roe vs. Wade: What does a judge do when a precedent is based on shaky legal ground? The Ginsburg Precedent: How much does a nominee have to answer, and how do you draw the line? Yet the most important precedent hasn’t been mentioned: the Clinton Precedent.

To refresh our memories, President Clinton had a chance to make two appointments to the Supreme Court. The first came with the retirement of Justice Byron White, a conservative who cast one of the two votes against Roe vs. Wade. And just one year before his retirement, White, joining three other justices, dissented in the 5-4 pro-abortion decision in Planned Parenthood of Southeastern Pennsylvania vs. Casey.

With the court so closely divided, what did Clinton do to preserve the balance? Did he replace White with another conservative, someone equally clear that there is no constitutional protection for abortion? He chose the former general counsel of the American Civil Liberties Union, a leading liberal law scholar whose special interest was women’s rights: Ruth Bader Ginsburg. Any question how close she was going to be to White?


The president did what presidents always do. He picked someone he thought would be a good justice according to his own views. He didn’t worry about preserving the balance on the court, and he certainly didn’t worry about maintaining the court’s division over abortion.

With a 56-44 Democratic majority in the Senate, Clinton didn’t worry about much other than replacing White with someone his party approved of and the GOP would credit as sufficiently accomplished to do the job. Ginsburg, the strongly pro-choice liberal judge and former law professor, fit that bill. Whether or not you like her positions on legal issues, Ginsburg is a smart, skillful lawyer and judge. And she garnered 96 of 99 votes cast on her confirmation -- including the overwhelming majority of pro-life Republicans.

Of course, today, with a 55-45 Republican majority in the Senate and a Republican in the White House, liberal Democrats are singing a different tune. Now, they say, we need the president to be sensitive to keeping the court as it is, to preserving the division on issues such as abortion.

It’s understandable that liberal Democrats would care about the Supreme Court. For more than half a century, the court has been pivotal in reducing the authority of the states, increasing the power of the federal government, eroding protections of property rights, tilting the legal balance from favoring religious worship to favoring atheism, and finding rights in the Constitution that no creative thinker in the nation’s first 175 years ever imagined.

Much of the liberal political agenda that could not muster support at the polls has been achieved through the courts. Would voters sanction government taking private property from one person to give to another? Would they approve banning the Pledge of Allegiance as an unconstitutional intrusion of God into our public life?

Unless courts keep altering legal rules to facilitate liberal causes, Democrats label judges conservative activists, and view anyone who supports them as wanting to take us back to the days of segregated lunch counters and back-alley abortions. It’s a mantra that worked against Robert Bork, so why not use it against everyone else?


It’s time to return to the understanding that presidents get to pick the judges they want, as long as they’re qualified for the job, and that senators are voting not on whether a nominee conforms to their preferences but on whether he or she shows the competence and temperament necessary to the judicial role. It’s time to recognize the Clinton Precedent as the benchmark for what presidents do.

RONALD A. CASS, president of a legal consulting firm in Great Falls, Va., is dean emeritus of Boston University School of Law and co-chairman of the Committee for Justice, which promotes constitutionalist judicial nominees.