What This Court Needs Is a Justice With Vision If President Clinton lets the pundits of moderation dictate his first Supreme Court nomination, he will have squandered an unique opportunity to begin charting the course of constitutional interpretation into the 21st Century. Even some liberals are bombarding the President with advice to choose as Justice Byron White's successor a centrist who will meld well with an emerging middle bloc on the Court and help create a new "moderate" majority. President Clinton should categorically reject that advice. He should instead emulate the bold stroke of Richard Nixon, who appointed William Rehnquist to the Court in 1971 not for marginal gain but for the purpose of challenging the Warren Court and espousing an alternative vision of our constitutional system. This is one case where a Democratic President should adopt Republican Barry Goldwater's 1964 maxim that moderation in defense of liberty is no virtue. In fact, what the Court (and the country) needs now is not another David Souter, not even another Harry Blackmun. It needs a justice who can articulate a judicial and constitution vision which is both faithful to our democratic heritage yet creative enough to meet the requirements of a changing society in the nation's third centennial. America needs a justice who can apply the essential principles of the Constitution to the new realities of the decades ahead. His or her constitutional compass must be calibrated to promote equality in an increasingly racially and ethnically polarized society; defend freedom of expression and communication in an age of media monopoly; support the pursuit of happiness amidst the despair spread by diminishing economic opportunity; defend liberty and individual autonomy against popular demands for conformity and discipline; and protect principles of privacy against increasingly intrusive technology. No member of the present court is equipped by intellect, ideology or temperament to frame, let alone articulate solutions to, the fundamental constitutional issues of the tricentennial. The most open-minded members of the Court, middle-of-the-road Republicans Blackmun and John Paul Stevens, are, at best, conservators of early Nixon Era values against the authoritarian Rehnquist and the radical right he epitomizes. For example, not a single member can be expected to advocate educational equity for the children of the poor and the powerless. When this issue was before the Court in a Texas case in 1973, there were at least four Justices prepared to say that state governments could not allow public education to be dispensed according to the respective financial abilities of their municipalities. Those dissenters were ready to find that such school financing schemes constituted a denial of equal protection of the laws for the residents of impoverished communities with narrow tax bases. In the interim, the high courts of several states, including Texas, have now come to that very conclusion. But there is not a single signer of the 1973 dissent still sitting on the Supreme Court, and there is absolutely nothing in the records of any of the Justices who have joined the Court since 1973 to indicate they are prepared to reargue the dissenters' point of view. If this nation is to move ahead in the next century with any semblance of educational opportunity for the increasing ranks of the children of the urban and ethnic poor, something must be done to guarantee a broader financial base for inner-city school districts. For most of the country that will happen only if the United States Supreme Court mandates it. In another failed opportunity to break with hoary tradition, the Court refused in a 1973 case out of Oregon to recognize a fundamental right to a habitable dwelling. In dissent, Justice William O. Douglas asserted: "In the setting of modern urban life, the home, even though it be in the slums, is where man's roots are." Since the retirements of Justices William Brennan Jr. and Thurgood Marshall, there is no one left to argue that the Constitution requires that federal courts closely examine the impact of government policies on the rights of poor people to necessities of life such as education and housing. The Court needs a new visionary in the mold of a Brennan, Marshall or Douglas who is willing to explore the constitutional dimensions of the "property" rights which are entitled to protection under the Fourteenth Amendment's Due Process Clause. It was Brennan who often described Goldberg v. Kelly, holding that entitlement to welfare benefits was just such a right, as his most important opinion in 35 years on the Court. The legal academic journals are filled with debate on these and other issues of economic rights under a Constitution designed to promote the general welfare. However, those ideas will receive no hearing in the high court's chambers unless President Clinton starts to send jurists prepared to explore new frontiers of constitutionalism. The Supreme Court's narrow-gauged concept of property rights is even reflected in its free-speech jurisprudence. Although the Court has been reasonably diligent in protecting the content of expression (so long as it did not encroach on anything that might be remotely identified as national security interests), it has been unsympathetic to speakers' rights when they conflict with those of a property holder -- public or private. The forums for speech have been contracting since the demise of the Warren Court. A short-lived 1968 Warren Court decision required that privately owned shopping malls permit distribution of advocacy literature on their premises. For poorly financed organizations unable to afford media advertising or even mass mailings, there is no comparable forum for the dissemination of views. The 1968 decision written by Marshall recognized that these new "Main Streets" were an essential component of a system of free expression. But the newly conservatized Burger Court in 1972 ruled that the rights of property owners were preeminent. We need from President Clinton Justices who are willing to reexamine traditional notions of property in an age when real estate is so clearly finite, and there is a constantly expanding population which it must accommodate. In its third century, this nation must also confront new challenges posed by increasing ethnic and racial polarization. The current line up of Justices are all committed to the ideology of the "melting pot." At their best, they believe the law should treat every one equally, and are increasingly skeptical about affirmative action programs and racial set asides designed to overcome social discriminations. Arguing for affirmative programs to assist members of minority groups to achieve real equality, Justice Brennan wrote 15 years ago in the Bakke case, that "claims that law must be 'color blind' or that the datum of race is no longer relevant to public policy must be seen as aspiration rather than a description of reality." Justice Blackmun is the only remaining member of the Court who signed on to that opinion. Yet Brennan's dictum seems truer each year as the nation becomes ever more diverse, and discrete Latino, Asian and African-American populations -- and their many subdivisions -- proliferate and separate themselves each from the other as well as from the larger community. As Brennan himself acknowledged, the "melting pot" remains an appropriate aspiration for our multi-cultured land; but wishful thinking will not make it a reality. In the difficult years till our aspirations are realized, we will need minds and voices on the Supreme Court who can help navigate that uncharted course. There is one legal light in our land who is ideally equipped to fill the Court's immediate need. But the 87-year-old William J. Brennan Jr. is obviously not able to accept the nomination. He does, however, provide for President Clinton an ideal model of a fresh-thinking Justice for the new millennium. (Printed in The National Law Journal, May 24, 1993)