The Supreme Court: Filling a Legal Giant's Shoes

By NANCY GIBBS.

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.

With reporting by Dan Goodgame and Julie Johnson/Washington