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JUSTICE WHITE STEPS DOWN Conservative bloc in court likely affected

THE BALTIMORE SUN

WASHINGTON -- Justice Byron R. White's retirement from the Supreme Court this summer almost surely will weaken a bloc of committed conservatives who have been tantalizingly close for years to dominating the court's work.

Justice White announced yesterday he will retire when the court ends its current court term in late June or the first few days of July. He was appointed to the court in 1962 by John F. Kennedy.

President Clinton may not make a choice for the coming vacancy until weeks and perhaps months from now, but he is in a position to turn the court distinctly away from the always present prospect of 5-4 conservative rulings, and thus prevent the completion of the conservative judicial revolution sought by Presidents Ronald Reagan and George Bush.

It is widely speculated that Mr. Clinton will make a determined effort to foster the still tentative development of a moderate core on the court, by naming a "centrist" judge not far different in outlook from Justices Sandra Day O'Connor, Anthony M. Kennedy and David H. Souter.

Those three are already in a position to control the outcome on many issues when they vote together. They did so last year when the court partly reaffirmed the constitutional right to abortion, leading Justice White and three other conservatives who are opponents of Roe vs. Wade to dissent.

A fourth ally comfortable with the moderate justices' views could solidify their control, because moderate positions almost always can attract the votes -- if not the enthusiastic endorsement -- of one or both of the court's two liberals, Harry A. Blackmun and John Paul Stevens.

Close observers of the Clinton administration, including some of its outside, informal advisers, were seeking yesterday to quell speculation that Mr. Clinton might decide to pick a committed liberal -- such as New York Gov. Mario M. Cuomo -- for the seat held by Justice White.

To pick a liberal, it was suggested, the president would have to be ready to spend a considerable fund of his political resources early in his administration just to get Senate approval. The court vacancy may not have that kind of priority for Mr. Clinton, these observers were suggesting.

Mr. Clinton also was said, by some analysts, to be unwilling to run the risk of naming a provocative liberal who could alienate the moderates and drive them back toward the conservative allegiances those justices have been slowly abandoning in the past two terms of the court.

Moreover, the president's rather moderate views are believed likely to lead him more toward a nominee who does not stray far from his own thinking.

In the hours after Justice White disclosed yesterday morning his long-anticipated decision to leave the court, talk of possible successors began to focus first on a small group of decidedly moderate jurists. Among them are federal circuit judges Amalya L. Kearse and Richard S. Arnold and New York state's chief judge, Judith S. Kaye.

Judge Kearse and Judge Kaye were considered by the White House for the attorney general's job. Each was rated highly there before Mr. Clinton turned to an experienced prosecutor, Janet Reno, for that post.

Mr. Clinton will likely pursue his goal of "diversity" in picking his first Supreme Court nominee, thus the speculation that women and blacks might emerge quickly at or near the top of his preferred list. Judge Kearse and Judge Kaye, of course, are women, and Judge Kearse is black.

Judge Arnold's name was getting some mention here because he is a long-time Little Rock associate of the president's, and also has a distinguished, mostly moderate record on the 8th U.S. Circuit Court of Appeals.

Mr. Cuomo is the only potential Clinton nominee to have been mentioned by Mr. Clinton directly, but that was during the presidential campaign last year. There was remarkable unanimity yesterday among those ready to speculate on the new vacancy that Mr. Cuomo will get a courtesy look but not the nomination.

Another potential nominee who is black is Drew S. Days, a Yale law professor and former government civil rights official who is still considered the leading prospect to be named U.S. solicitor general -- the chief government advocate before the Supreme Court. Mr. Days' selection for the solicitor general's job is believed to be close to final, and the White House may not want to start over in that search.

Justice White's decision to disclose his retirement plans now probably assures that his seat will be the only one vacant this summer. Justice Blackmun, who moves up to become the senior justice, has said he would not remain on the court much longer, but has said privately that he wants to stay at least for a term beyond the current one.

Mr. Clinton was getting a good deal of unsolicited advice yesterday, especially from public advocacy groups keen on trying to shape the Supreme Court. The NOW Legal Defense Fund, a liberal women's rights group, immediately began

demanding a female nominee, saying: "The Supreme Court is women's final frontier."

But the president was getting advice from conservative groups to avoid "quotas," and to pick a judge with views close to those of Justice White. The Christian Coalition referred to the conservative justice as a "mainstream voice on the Supreme Court," and said his successor should be a match.

Mr. Clinton said yesterday that he would start work on the search today. The new administration has not even sorted out how to go about picking nominees for judgeships to any federal court.

The president is likely to be much involved personally in the choice of a Supreme Court nominee, as will the first lady, Hillary Rodham Clinton.

In Atlanta yesterday, the president said that he would "pick a person that has a fine mind, good judgment, wide experience in the law and in the problems of real people, and someone with a big heart."

Asked whether he was describing Mr. Cuomo, Mr. Clinton did not reply amid the laughter and applause that the question provoked.

Before leaving Washington, the president told reporters: "I did not anticipate having the opportunity to make an appointment at this early stage, so we don't have a big bank of potential nominees." He had said during the campaign that he would pick a justice sympathetic to abortion rights, but refused to discuss that yesterday.

Ms. Reno said in a statement only that she would work with the president "in the search for a successor" to Justice White.

Because of the assumption about a key role for Mrs. Clinton, her close friend and longtime professional associate, Children's Defense Fund president Marian Wright Edelman, was being mentioned in some of yesterday's speculation about Justice FTC White's seat on the court. There was no indication that that speculation was inspired by the White House.

Among other names figuring in the initial speculation were federal circuit Judges Stephanie K. Seymour of Tulsa, Abner J. Mikva and Patricia M. Wald of the District of Columbia, and federal trial Judge Jose Cabranes of New Haven, Conn.

Justice White's retirement would remove from the court its last member named by a Democratic president. He was chosen in 1962 by President John F. Kennedy. No Democratic president has had a chance to fill a Supreme Court vacancy since 1967, when Lyndon B. Johnson chose the late Thurgood Marshall.

Although Justice White's departure has been anticipated for months, the timing was a bit of a surprise. He reportedly had not shared the timing decision with even close associates here; he told his colleagues on the court this morning in a memo, a half-hour before they met for their weekly private conference.

Justice White has been in good health but has told friends for months that he was tiring of the court's work, and that he had been holding on to his seat mainly because he wished to have a Democratic president pick his successor.

He has been a Democratic loyalist all of his adult life, his friends note.

The president said that Justice White had told him that "he wanted to give me this much notice so that hopefully I could announce my intention to nominate someone, and all the hearings could be concluded in time to really prepare someone to serve at the beginning of the October term of the court."

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