Jews Welcome Clinton’s Opportunity to Replace White on Supreme Court
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Jews Welcome Clinton’s Opportunity to Replace White on Supreme Court

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Jewish groups are welcoming President Clinton’s opportunity to appoint a judge more sympathetic to their views to replace Supreme Court Justice Byron White, who announced last week that he would be stepping down from the court this summer.

In his 31 years on the bench, White, a centrist conservative appointed by President John Kennedy, tended to be on the opposite side from much of the Jewish community on issues involving church-state relations and abortion rights.

Based on the president’s past statements, the appointee is likely to be more liberal than most of the justices currently serving, and would help balance the court’s tilt to the right in recent years.

In a 1990 freedom of religion case, White ruled with the majority that state governments could have greater leeway in outlawing certain religious practices.

That ruling, involving ritual use of the hallucinogen peyote by Native Americans, has caused great concern in the Jewish community. Jews are afraid that the decision could restrict such ritual practices as kosher slaughter.

The ruling spawned a bill now pending in Congress, the Religious Freedom Restoration Act, which would make it harder for the government to encroach on freedom of religion. A broad range of religious groups support the legislation.

White dissented in the 1973 Roe vs. Wade case legalizing abortion, and has continued to express opposition to abortion rights over the years.

“The Court apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries,” he wrote in his Roe vs. Wade dissent.

Marc Stern, legal director of the American Jewish Congress, said Friday following the announcement of White’s upcoming retirement: “At first glance, it’s hard to think he’s had a defining role” on the court.


“His work product is fine, it’s not second-rate, but it’s not memorable,” said Stern.

Phil Baum, AJCongress’s associate executive director, said in a statement that the organization “salutes” White on “his long years of dedicated service.”

Baum added, however, that White’s retirement gives Clinton his first opportunity “to help point the court in a direction more sympathetic to the goals of compassion for the poor and concern for individual rights and reproductive freedom that he so effectively articulated during his election campaign.”

White became more conservative over the years, said Rabbi David Saperstein, director of the Religious Action Center of Reform Judaism. “He was out of sync with the Jewish mainstream” on abortion rights and civil rights issues, Saperstein said.

Abba Cohen, Washington representative for Agudath Israel of America, an Orthodox group, said his organization had a “somewhat mixed” reaction to White’s retirement.

While he said White’s ruling on the 1990 peyote case was “dismaying to us,” Cohen added that Agudath Israel will “probably miss” White “on a range of issues.”

Much of the Orthodox community agrees with White’s stand on abortion. In addition, the Orthodox community tends to support federal aid to religious institutions, another issue on which they and White were in accord.

In announcing his plans to retire, White said that “after 31 years,” he and his wife “think someone else should be permitted to have a like experience” on the Court.

Speculation has already begun concerning White’s replacement.

Clinton has said in past interviews, Saperstein noted, that he would possibly select someone like New York Gov. Mario Cuomo or Marian Wright Edelman of the Children’s Defense Fund. Harvard Professor Laurence Tribe is also a possibility, experts speculated.

The assumption has been that Clinton would select an abortion-rights supporter.

Saperstein said that he expects the new justice to be someone with “an expansive view of individual rights,” who cares about women’s rights and the free exercise of religion.

“He wants someone with vision on the court,” Saperstein said, adding that Clinton will want the court, as he wanted his Cabinet, “to look more like America.”

Cohen said that Agudath Israel would like Clinton to select a moderate justice to replace White.

“Curing extremes by appointing extremes is not the answer,” Cohen added.

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