I couldn’t bring myself to watch a “presidential debate” 21 months before the next president will be inaugurated, but a Bench Memos reader sends along a tidbit from Thursday night’s Democratic confab in South Carolina, which made it worth going to look at the whole transcript. Moderator Brian Williams asked three of the candidates to name a favorite Supreme Court justice. He started with New Mexico governor Bill Richardson, whose reply was, “It would be Justice ‘Whizzer’ White.” Williams followed up, “How about someone who is among the living?”–which elicited some laughs from the audience. Richardson then said, alluding to last week’s Carhart ruling (which had been discussed by Williams and a couple of other candidates moments before, and Richardson was clearly trying to catch up):
It would be — and in this particular case, Judge Ginsburg, who said that this was an erosion of a woman’s right to choose and degraded the ability of a woman to protect herself health-wise.
Now this is odd on several levels. First, what prompted Richardson to mention White in the first place? Has Bill Richardson harbored a quiet admiration for Byron White all these years? Is it because he identifies with White the one-time professional athlete (who disliked the sportswriters’ nickname “Whizzer”), Richardson having once been scouted as a major league baseball prospect himself (though I’m not sure he would want to remind people of the slight self-inflation of which he was guilty for many years on this score)? Is it because he wants to identify with John F. Kennedy, who appointed White–though few voters today would remember that? Is it because White was born and died in Colorado, a famous athlete for the University of Colorado in both football and basketball, and Colorado (next door to New Mexico) is now thinking about rescheduling its caucus to fall on the Super Duper Tuesday next February 5?
Any of these explanations is something of a stretch. What we do know is that anyone who mentions his admiration of Justice Byron White in one breath, and of Justice Ruth Bader Ginsburg (who replaced White) in the next, and specifically mentions Ginsburg’s defense of “a woman’s right to choose,” has either forgotten, doesn’t know, or is counting on voters not to know that White vehemently dissented from Roe v. Wade in 1973 (then-Justice Rehnquist was the only other dissenter). White never backtracked from this view with any sign of respecting Roe as a precedent–as, for instance, he came to accept Miranda v. Arizona (1966), from which he also–rightly–dissented. To the end of his tenure on the Court, he continued to believe that Roe was an illegitimate “exercise of raw judicial power,” as he wrote in his dissent.
Oh wait, I have it. This is Governor Richardson’s subtle signal to the silent right wing of the Democratic primary electorate–you know, the voters who reject gay marriage and even want to revive laws against homosexual sodomy, who are just waiting to rush to the polls and choose Richardson as their party’s nominee. Justice White, you see, was also famously the author of the opinion for the Court in 1986′s Bowers v. Hardwick case–overturned in 2003′s Lawrence v. Texas, with Justice Ginsburg in the majority–in which he said that a claim under the due process clause to a right to engage in homosexual sodomy was “at best, facetious.”