
                         Roanoke Times
                 Copyright (c) 1995, Landmark Communications, Inc.

DATE: TUESDAY, April 27, 1993                   TAG: 9304270348
SECTION: EDITORIAL                    PAGE: A-5   EDITION: METRO 
SOURCE: PERRY MORGAN
DATELINE:                                 LENGTH: Medium

COURT VACANCY

WHEN Justice Byron White announced plans to retire from the Supreme Court, The New York Times dismissed him as "more a witness than a moving force." After 31 years on the court, he was called a "cipher" and a "follower" in a piece in The New Republic by Jeffrey Rosen, who said that White had intelligence but no vision.

All this, more or less, may be true; no particular cause, no excavated constitutional truths come readily to mind when one thinks about Justice White. He has been inclined to defer to the elected Congress rather than to enlarge the writ of the appointed court.

But if intelligence without vision is a fault, so can be vision without intelligence. And there has been plenty of that on the part of the court's luminaries.

During the years that White has served, for example, the court envisioned a public-school system integrated according to racial ratios mandated by district judges, and a right to abortion unfettered by any act of any legislature, and a similarly absolutist rule against religious observance in schools.

White was opposed to the court's decision in two of these cases - abortion and religion in schools. Because of public resistance, none of the new constitutional interpretations in the three cases is stable.

Many public schools resegregated due to white flight, more than a few simply defied the ban on religious observance, and the court itself trimmed back on unrestricted abortion rights. These facts alone ascribed to the court's holdings a certain lack of legitimacy.

What is the source of legitimacy when an appointed court makes arbitrary rules for a democratic society? According to the late legal scholar Alexander Bickel, the rules are legitimate only when they articulate an unexpressed majority view or when, by provoking debate, a sympathetic majority view is called into being.

A University of Chicago law professor, Cass Susstein, struck the same theme when he wrote: "Even when courts are effective, there are serious problems in judge-led reform from the standpoint of democratic legitimacy. Reform through the courts may dampen the practice of citizenship, an individual and collective good."

These views bear on one expressed by President Clinton before his election. He said he believed the judiciary was running the risk of "losing its legitimacy" because "it is less reflective of our diverse society than at any other time in recent memory."

That fault he attributed to "the narrow political appointments of George Bush." Regarding the Supreme Court, this surely is not true, Clarence Thomas notwithstanding. The Reagan-Bush court modified but never reversed the activist thrusts that marked the court over a period of four decades.

More interesting, though, is the question of Clinton's approach to choosing a successor to White. Does the lack of diversity he alleges refer to viewpoints or to race or to gender or all three? When he stresses his desire for an appointee who believes "in a strong and broad constitutional right to privacy," is he signaling hopes for a new round of judicial activism? The question arises because even supporters of abortion have to agree that privacy is a word unmentioned in the Constitution, and the right Clinton refers to was contrived, and made absolute for a time, by judges.

Considering the fact that an activist court was the primary force fostering individual rights (including enumerated ones) during Clinton's lifetime, it's easy to assume that he wishes to turn the court back to activism.

But as a politician and former law professor, the president must also be keenly aware of the damage done by judicial overreaching into the schools, for example, and that the Democratic Party severely suffered for its reflexive support of the court as national nanny.

Whom to choose may be a difficult question for Clinton, but how to choose should be simpler. Let him forget quotas and litmus tests. If he just wants a vote on the court, any dunderhead will do. If he wants to improve the court, let him choose a mind free of dogma that can reason and write clearly, and thus demonstrate his asserted superiority over George Bush.

Perry Morgan is a former publisher of The Virginian-Pilot and The Ledger-Star in Norfolk.

by CNB