Clinton to Usher In New Court Centrism

WASHINGTON -- President Bill Clinton's election to a second term all but assures the vivid transformation of the nation's federal courts in both appearance and judicial philosophy by 2000.


If Clinton keeps up his drive for diversity, an estimated quarter of the bench will be occupied by women and 10 percent of judges will be members of racial minorities -- figures that would more than double the representation of these groups since Clinton took office.


With four more years of appointments, Clinton will have more judges on the courts than any of his predecessors. If retirements come as some predict, his appointees could make up a controlling bloc on the Supreme Court. Clinton also might become the first Democrat in 50 years to appoint the chief justice of the United States.


In terms of substance and ideology, by century's end a new centrism will take hold on the federal bench. Clinton's judges overall have been pragmatic moderates. As they come to dominate the courts, the liberal ideology associated with several of President Jimmy Carter's appointees will be history, and the conservative vigor of President Ronald Reagan's judges will be on the wane.


What is emerging, say some judicial scholars, is an era when the courts no longer consider their role as an active solver of society's ills in the way that past courts advanced criminal defendants' rights, ensured school desegregation, protected blacks' voting rights and broke the ground to protect personal privacy from state interference.


"The practical effect,'' said University of Chicago provost Geoffrey Stone, "is to change significantly the idea that the judiciary will seek with any real assertiveness to address [social] problems, as had been the judiciary's province at least a decade before.''


While there is a chance Clinton will grow bolder, it is most likely that Clinton's second-term judges will be as centrist and cautious as his first, epitomized by high court appointees Ruth Bader Ginsburg and Stephen Breyer.


Clinton himself has described his appointees as "mainstream judges'' and criticized the practice of "basing selections on rigid adherence to a strict ideological agenda.''


As a candidate, Clinton complained then that the back-to-back Republican presidents had loaded the bench with ideologues. But rather than name liberal powerhouses to counter the effects of 12 years of Republican rule, Clinton went, as the mantra of this administration goes, "mainstream and Main Street,'' the latter referring to his quest for diverse representation.


A recently published statistical analysis of thousands of rulings from 1992 to 1996 found Clinton's judges decidedly less liberal than Carter's and more akin to Republican Gerald Ford's appointees. The study by three political science professors said Carter appointees lead the way in "liberalism scores,'' most noticeably on civil rights and liberties and criminal justice questions.


No justice has announced any intention of resigning. But Clinton could end up replacing Chief Justice William Rehnquist, 72, Justice John Paul Stevens, 76, and possibly one other, depending on the health and personal circumstances of the nine justices.


Rehnquist, a Nixon appointee who was elevated by Reagan to chief justice, is difficult to read. On one hand, he has been on the court 25 years and endures a bad back that forces him to stand up intermittently during oral arguments. He also writes books, paints and enjoys other pursuits that could induce him to leave the bench while he is still reasonably agile. But his partisan blood runs deep: He might try to hold out for a Republican president, so as not to leave the job of replacing him to Clinton.


The quirky Stevens is known for his distinctive, unpredictable jurisprudence. His tenure on the bench is equally hard to predict. He seems to have settled into a schedule of being at the court on days of oral arguments and telecommuting from his Fort Lauderdale, Florida, home the rest of the time. Though appointed by Ford, Stevens over time has become one of this court's liberals.


Justice Sandra Day O'Connor, 66, is the next most senior justice. She had surgery for breast cancer in 1988 but says she is fully recovered. She keeps a busy traveling and speaking schedule.


If Rehnquist retires, some administration officials believe Ginsburg would lead the list of potential successors. Clinton has shown he likes "firsts,'' and she would be the first woman chief as well as the first Jew to assume the post.