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Supreme Court's Byron White Will Step Down After 31 Years : Law: Departure would allow first high court appointee by a Democratic President in quarter of a century. Retirement could mark the start of a gradual shift toward the left.

March 20, 1993|DAVID G. SAVAGE | TIMES STAFF WRITER

WASHINGTON — Justice Byron R. White, the lone Democrat on the Supreme Court, announced Friday that he will retire in June, clearing the way for the first time in a quarter-century for a Democratic President to select a new appointee to the high court.

White's retirement was not unexpected, although many observers had thought that the court's oldest justice, Harry A. Blackmun, would depart first. White, 75, a terse, no-nonsense jurist, announced his decision in a typically brief written statement.

"It has been an interesting and exciting experience to serve on the court," it said. "But after 31 years, Marion (his wife) and I think that someone else should be permitted to have a like experience."

His departure may signal the demise of the court's conservative bloc and the beginning of a gradual shift to the left. Without White's vote, Chief Justice William H. Rehnquist will have difficulty finding a majority for conservative rulings.

Although thought of as a centrist when appointed to the court by President John F. Kennedy in 1962, White--a former All-American football player and Rhodes scholar--in recent years has joined the court's conservatives on the most charged issues, including abortion, affirmative action, religion and the death penalty.

White "has been in the middle over the years and when you change the center, you change the court," said former U.S. Solicitor Gen. Rex Lee, a clerk to White in his first year on the bench.

After conferring with the justice on the phone, Clinton praised White for announcing his retirement early so the new White House can take several weeks to consider his replacement.

Unlike his recent predecessors Jimmy Carter, Ronald Reagan and George Bush, Clinton is a lawyer who once taught constitutional law and is expected to play the key role as his Administration sifts through the candidates.

Few decisions for a President "are more weighty, more significant and could have a greater impact on more Americans" than selecting a person for a lifetime appointment on the Supreme Court, Clinton said. "I'm going to pick a person that has a fine mind, good judgment, wide experience in the law and the problems of real people and someone with a big heart," he said.

But the free advice began flowing quickly.

In an apparent echo of the statements issued during the court battles of the 1980s, Republican senators and leaders of conservative legal groups urged Clinton to avoid a "litmus test" in his selection and to pick someone whose views represent "mainstream" thinking.

"President Clinton will now have an opportunity to prove that he really is a 'new Democrat,' " said Senate Minority Leader Bob Dole (R-Kan.).

By contrast, liberal legal groups, including the Alliance for Justice and the NOW Legal Defense Fund, called on the President to appoint a woman or a member of a racial minority who can "challenge the conservative orthodoxy" on the Republican-dominated court.

The names often mentioned include New York Gov. Mario M. Cuomo; U.S. Appeals Court Judge Amalya L. Kearse of New York; Marian Wright Edelman, head of the Children's Defense Fund, and U.S. Appeals Court Judge Richard Arnold of Little Rock, a long-time friend of the Clintons.

But Administration officials have said privately they have not had time to carefully prepare a list of candidates for the high court, partly because of the delay in filling the attorney general's job. By coincidence, a former White clerk, Ronald Klain, was recently named as an assistant White House counsel and given the task of compiling the list of potential candidates.

A second high court vacancy could come soon. "I don't intend to stay there very much longer," Blackmun, 84, told law students in Boston earlier this month.

Blackmun, a 1970 appointee of Richard M. Nixon, may leave in June when the court term ends, although some of his friends predicted that he will stay for one more year. They said that Blackmun would like to be the court's senior justice, a position now held by White.

But of the two, White's retirement is more significant.

Where Blackmun has been a frequent dissenter of late, White has voted with a narrow majority in recent years to restrict federal civil rights laws, to cut back on preferences for blacks or women in awarding government contracts, to permit more state restrictions on abortion and to uphold death sentences.

In 1973, White dissented along with Rehnquist when the court in Roe vs. Wade said pregnant women had a constitutional right to choose abortion. Last year, he joined Rehnquist and Justices Antonin Scalia and Clarence Thomas in voting to reverse the abortion right, but their effort fell one vote short.

"I think this (retirement) means that Roe vs. Wade is secure," Lee commented.

In perhaps his most controversial opinion, White wrote for a 5-4 majority that upheld a Georgia law making sodomy a crime. He commented that it "is, at best, facetious" to suggest the Constitution protects the freedom of homosexuals to engage in sex in private.

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