TIME: Almanac 1993/TIME Almanac 1993.iso/time/070891/0708103.000

Text File | 1992-08-28 | 9.1 KB | 180 lines

                                                                                NATION, Page 22

THE SUPREME COURT

Filling a Legal Giant's Shoes


Thurgood Marshall retires, setting the stage for Bush to
strengthen a conservative majority that could dominate the high
bench for decades

By NANCY GIBBS -- Reported by Dan Goodgame and Julie Johnson/
Washington


    Thurgood Marshall did his best to outlast the Republican
Presidents he frequently calls "those bastards." But his 83rd
birthday was approaching, his health was so poor that he said
he was "coming apart," and there was not much hope that a
liberal Democrat would recapture the White House and name his
successor. Last week Marshall, the only African American ever
to serve as a Justice of the U.S. Supreme Court, gave up the
seat he had held since 1967.

    Despite his physical frailty and growing philosophical
isolation from his fellow Justices, Marshall's was no meek or
defeated departure. His last words from the bench were a
stinging rebuke to the court's conservative majority. In a
6-to-3 decision, the Justices ruled that prosecutors in
death-penalty cases could introduce evidence about the character
of the victim and the suffering caused by the crime -- thereby
reversing a precedent that was only four years old. In his
majority decision, Chief Justice William Rehnquist argued that
while adhering to precedent "is usually the wise policy," it was
not an inexorable command, especially when decisions were
"unworkable or badly reasoned."

    This brought thunder from Marshall. "Power, not reason, is
the new currency of this court's decision making," Marshall
wrote. In the cases overturned, "neither the law nor the facts
. . . underwent any change in the last four years. Only the
personnel of this court did." The implications of discarding
established legal principles to pursue a political agenda, he
charged, were staggering. High on his list of "endangered
precedents" are cases involving the right to abortion,
affirmative action, limitations on the death penalty, and
separation of church and state. The new approach, he added,
"will squander the authority and legitimacy of this court as a
protector of the powerless."

    There was some irony in this clash of judicial views.
Rehnquist was appointed to the court by Richard Nixon and
promoted to Chief Justice by Ronald Reagan, both harsh critics
of activist judges. As a civil rights attorney, Marshall won
landmark rulings that overturned long-standing precedents
upholding legal segregation. Now Rehnquist and his like-minded
colleagues seemed bent on pursuing an aggressive conservative
agenda, while Marshall was fighting to uphold the decisions of
the past.

    The rulings of the Rehnquist court have sent liberal
activists scrambling to Congress and the states to defend rights
that are increasingly under attack. In May, in Rust v.
Sullivan, the court ruled that the government could cut off
federal funds from health clinics that provided abortion
counseling; last week Congress struck back with a bill to
restore the funding. The civil rights bill is Congress's
response to last year's court rulings that made it harder for
employees to prove that they had suffered discrimination on the
job. "We are no longer seeking out the Supreme Court to review
decisions," says Nadine Strossen, president of the A.C.L.U.
(American Civil Liberties Union). "Now we're constantly asking
Congress to take corrective action to restore the individual
liberties that the Supreme Court has taken away."

    Though Marshall's retirement gives President Bush another
chance to shape the direction of the high court, there was
little rejoicing at the White House. The departure last year of
Justice William Brennan, who had been the leader of the court's
liberal wing, tipped the balance and allowed Bush to install a
conservative majority at last by appointing David Souter.
Replacing Marshall will not have the same impact; it will mainly
mean that what would have been 5-to-4 decisions are likely to
be 6 to 3. But even so, the search for a successor to the
court's only black justice could be a political minefield.
"Choosing a brilliant and unexpected nominee like David Souter
and getting him confirmed -- that was fun, for the President and
for all of us," said a top Administration official. "But this
one is going to be a bear."

    The President has spent the spring crusading against the
civil rights bill, which he claims would lead to the use of
racial quotas. But his aides say he is considering applying a
form of reverse discrimination to the nation's highest court.
"There's a part of George Bush that's very stubborn and that
bridles at the idea that he is expected to appoint a black man
to replace a black man," says a senior White House official. But
in private, the President's advisers are almost unanimous in
predicting that he will not appoint another white male. "We can
certainly get away, politically, with a good Hispanic nominee,"
says another Bush adviser. "We can probably get away with a
woman. What would cost us would be picking another white guy."

    In weighing his decision, Bush said on Friday, "I want to
go for excellence. I want to keep in mind the representation of
all Americans." He might do well to recognize that it was not
Marshall's race alone that gave Marshall a unique perspective on
issues before the court. More than any other Justice of his era,
Marshall brought an experience of the real world, of growing up
poor, of fighting for principle in the trenches. His views on
the death penalty, for instance, were shaped by the lessons he
learned defending people charged with murder. He is the only one
to have put his own life at risk by trying volatile cases in the
segregated South. "There was nothing bloodless about his
decisions," says Professor A.E. Dick Howard of the University of
Virginia Law School. "He identified with the little people in
a way that few Justices do."

    It is not only racial pressures that the President will be
feeling. Just as loud are cries from the right to seize this
chance to target abortion. Already this term the court had
grazed the issue by upholding the Administration's ban on
abortion counseling in federally funded clinics. But though
Souter joined in that vote, his views on a total ban on abortion
are unknown, and Sandra Day O'Connor has implied a reluctance
to toss out Roe v. Wade altogether. Thus pressure is building
on the President to nail down an antiabortion majority once and
for all -- or, says a pro-life leader, "there'll be hell to
pay."

    At the same time, moderate Republicans in Congress, with
their eye on the 1992 elections, are worried that if the court
does throw out Roe sometime next year, pro-choice voters will
take out their anger at the polls. The safest course for Bush
might be for him to unearth another "stealth" nominee like
Souter, who has impressive judicial credentials but no paper
trail on abortion or other divisive issues. Then the nominee
could follow Souter's lead and refuse to discuss how he or she
might vote on cases likely to come before the court.

    The White House has a short list of candidates that was
compiled and updated when Brennan stepped down. Among the names
most often mentioned -- all conservative Republicans -- are
Clarence Thomas, 43, a black federal appeals judge from
Washington; Ricardo Hinojosa, 40, a Mexican-American federal
district judge from Texas; and Edith Jones, 41, a white federal
appeals judge from Houston. But Bush has a penchant for surprise
nominations -- witness his choice of Dan Quayle as a running
mate -- and he might indulge it this time.

    The last thing the President wants is a brawl with the
Judiciary Committee over confirmation. The committee's chemistry
is already explosive enough, with such liberals as chairman
Joseph Biden and Ted Kennedy squaring off against conservatives
Orrin Hatch of Utah and Strom Thurmond of South Carolina on
issues like the crime and civil rights bills. "The Democrats
aren't beating us anywhere right now, and we want to keep it
that way," says a senior White House official. "The President
has them beaten in approval ratings. When he vetoes a bill,
we're able to sustain it. When he wants to go to war, we're able
to force Congress to go along. The only place the Democrats have
really been able to hurt us is in the confirmation of
appointees, as they did with John Tower. So we'd obviously like
to avoid giving them more of that kind of opportunity."

    Bush doesn't want a replay of 1987, when Ronald Reagan
named Judge Robert Bork in July and then had to wait until after
Labor Day for the Judiciary Committee to start confirmation
proceedings. The delay gave Bork's critics ample time to study
his record and marshal arguments against him. "As long as you're
as close as we are, it's better to get the choice made so you
don't get a lot of needless lobbying and pressure," Bush
declared before heading for Kennebunkport. He clearly implied
that he might announce his choice as early as this week.