The Man in the Middle

When Richard Nixon nominated Lewis Franklin Powell Jr. to the Supreme Court in 1971, on his mind must have been something like General Pickett's exhortation to his troops before their ill-fated charge at Gettysburg:

"Don't forget today that you are from Old Virginia." Powell's background as a First-Family-of-Virginia gentleman--his ancestors helped to settle Jamestown in 1607--seemed to match Nixon's desire to shift the court to a more conservative, strict-constructionist stance.

But once on the bench, Powell turned out to be far more flexible than Nixon had expected, and in fact has become one of the least predictable of the Justices. Before his nomination, Powell said in an article that Americans had little to fear from the Government's use of wiretaps against the "radical left."

Once on the court, however, he wrote a ringing decision striking down Nixon's claim that the Government did not need a court order to bug suspected domestic security risks. Similarly, Powell once approvingly told the American Bar Association that the Supreme Court seemed to be moving away from usurping the authority of the Legislative Branch. But on the bench, he voted with the majority in a decision that not only legalized abortions but set forth unusually detailed guidelines on them.

Last year, when Powell provided the deciding vote in a 5-to-4 ruling upholding suspects' rights to legal counsel while being questioned by police, he was rebuked from the bench by Chief Justice Warren Burger. Burger waspishly declared that with "only one convert" the court might some day restore "rationality" by voting the other way.

Powell's position as the point man in what lawyers already are calling the "4-1-4" Bakke decision illustrates his propensity toward thoughtful moderation. "The key problem is one of balance," Powell once said, referring to the conflict between the rights of suspects and the need for law-and-order. Says J. Harvie Wilkinson, a professor at the University of Virginia Law School who once clerked for Powell: "By temperament, he tries to find common ground among varying points of view." Powell hates to be categorized as liberal or conservative. Says he: "Not one of us is a prisoner of blind prejudices."

With law degrees from both Washington and Lee (LL.B. '31) and Harvard (LL.M. '32), Powell practiced law for 35 years with one of Richmond's oldest firms. His politics were those of a patrician Virginia Democrat, though he often supported Republicans in national elections. As chairman of the Richmond school board in 1959, he won a hard-fought battle against the state's segregationists, who were urging massive resistance to the Supreme Court's ruling on school desegregation. As president of the American Bar Association in 1964-65. he persuaded colleagues to support legal aid for the poor.

Slender, bespectacled and scholarly, Powell, 70, works six days a week in his Supreme Court office and usually takes home briefs that he reads until past midnight. When the court recesses for the summer, he spends much of his time studying briefs in an office that he has in Richmond. In Washington, his favorite relaxations are dinner parties and watching the Washington Redskins; in his otherwise spartan law chambers, he has an autographed picture of Running Back Larry Brown. Powell also likes to go duck and quail hunting. At night his wife of 42 years, Josephine, sometimes reads histories, biographies or spy thrillers to him. They have four grown children, two of them lawyers. Powell is invariably soft-spoken and nonflamboyant. Even when, last week, he found himself in the catbird seat.

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