Clinton's liberal rhetoric masks a moderate vision for high court

February 14, 1993|By Lyle Denniston | Lyle Denniston,Washington Bureau

WASHINGTON -- President Clinton is going to surprise a lot of people who thought his election was going to lead to a heady revival of liberalism at the Supreme Court.

Those who know Mr. Clinton well and have watched him closely for years suggest he is not likely to foster bold new experiments with the Constitution or try to bring about daring modifications in the current court's outlook.

Starting his term with a court that is conservative most of the time but moderate now and then, the president is expected to try to move it toward being more predictably moderate on issues such as race relations, civil rights, women's rights and government-religion conflicts.

In one area of the court's work in recent years -- crime and criminals -- the Clinton administration is not believed to be committed to real change in the majority's strongly conservative stance on the rights of suspects and prison inmates, and on use of the death penalty.

The one constitutional field in which the president has vowed to pursue a liberal agenda -- abortion rights -- seems to be falling rapidly out of prominence on the court's docket. The repeated effort by the Reagan and Bush administrations to scuttle Roe vs. Wade failed, and lately the court has been making a studied effort to leave that issue alone.

During the presidential campaign, Mr. Clinton may have given liberal advocacy groups more reason to expect profound change there than he will actually deliver.

By mentioning only one name as a possible appointee to the court -- New York Gov. Mario M. Cuomo -- Mr. Clinton conveyed a signal of liberal activism. The candidate spoke about how one vote could make a difference on an often-divided court.

If, in fact, the liberal Mr. Cuomo was given the chance to cast that vote, the promise of genuine change might begin to become reality rather soon. But Mr. Cuomo no longer seems likely to be named to the court unless Mr. Clinton gets a chance to make several nominations. At most, he may get one or two in the next four years.

Those who had begun drawing up lists of the genuinely liberal judges, lawyers and scholars likely to be on the new president's preferred list for the court are adjusting to the reality that few, if any of those, actually would make it.

Mr. Clinton, the first president since Woodrow Wilson to lay some claim to being a constitutional scholar, is something of a left-of-center moderate in his own quite well-developed legal philosophy. By definition, a legal moderate usually is not very adventuresome.

Leonard P. Strickman, the dean of the University of Arkansas law school at Fayetteville, where Mr. Clinton taught for three years in the mid-1970s after graduating from Yale law school, said, "I think he's probably closest to the middle of the court -- but the middle as defined by the likes of Justices [Harry A.] Blackmun and [John Paul] Stevens."

Those justices may be the most liberal on the court now, as Dean Strickman noted, but they are "not of the far left" and neither, he suggests, is the new president. They also are not activists, and that would seem to suit Mr. Clinton, too.

Mr. Clinton could turn out to be the first Democratic president in more than a quarter-century with some vacancies on the court to fill. The last justice named by a Democrat, Thurgood Marshall, chosen in 1967, retired in 1991 and died last month. The only remaining justice put on the court by a Democrat is Justice Byron R. White, 75, who was appointed nearly 31 years ago.

Mr. White lately has not acted like a justice thinking of retirement, his close associates say, although there was speculation just a few weeks ago that he was going to do just that. The oldest justice, Harry A. Blackmun, 84, reportedly told the president recently that he plans to stay at least one more term after the current one -- and perhaps longer.

With the court's moderate bloc of Justices Anthony M. Kennedy, Sandra Day O'Connor and David H. Souter emerging in a central, if not always controlling, role on the court, the president is expected to move mainly to provide allies for that bloc.

Kathleen M. Sullivan, a Harvard law professor who has been helping with the Clinton transition, suggests that his "first appointments are likely to be moderate, more in the ilk of O'Connor, Kennedy and Souter, and less like Marshall and Brennan."

Some close observers of the court believe, in fact, that the Kennedy-O'Connor-Souter trio might be inclined to move back toward a more conservative stance if Mr. Clinton named justices with strong liberal views. By naming more moderates, it is suggested, the president could create a strong centrist bloc as a more effective check on the energetic conservatism of Justices Antonin Scalia and Clarence Thomas, and Chief Justice William H. Rehnquist.

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