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Powell Retiring; Court Fight Seen : Democrats Likely to Resist Reagan Bid for High Bench Conservative Majority

June 27, 1987|DAVID G. SAVAGE and RONALD J. OSTROW | Times Staff Writers

WASHINGTON — Justice Lewis F. Powell Jr., for the last 15 years the pivotal vote in many of the Supreme Court's most important decisions, ranging from abortion to affirmative action, unexpectedly announced his retirement Friday for reasons of age and health.

The move on the last day of the court's current term gives President Reagan the opportunity to replace the 79-year-old Powell, a moderate, with a conservative and form a clear conservative majority on the nine-member court.

And the resignation is expected to set the stage for an even bigger political struggle with the Senate than last year's confirmation fight over Chief Justice William H. Rehnquist.

"This has been a difficult decision," Powell said in a statement. " . . . I leave . . . with a considerable measure of sadness."

Appointed by Nixon

Powell, who was appointed by President Richard M. Nixon, said he was motivated by the approach of his 80th birthday on Sept. 19, "by having served 15 1/2 years when I contemplated no more than 10 years of service and by concern--based on past experience--that I could handicap the court in the event of reoccurrences of serious health problems." He underwent prostate cancer surgery in 1985.

Speculation on a replacement centered on appeals court judge Robert H. Bork, a favorite of conservatives, and Sen. Orrin G. Hatch (R-Utah), who led the Senate fight for Rehnquist and has been the Administration's prime defender during the Iran- contra hearings.

The White House said that Reagan would meet with his advisers Monday to begin going through a "short list" of possible nominees.

Reagan heard of Powell's decision only moments before it was announced at the court. The President praised Powell during an afternoon phone conversation and issued a statement calling the departing jurist "wise and generous . . . truly a justice's justice."

Reagan to Act Quickly

The President pledged to move quickly on a proposed replacement, saying that the court needs to be at full strength by the start of its term in October.

Because Congress, which plans to recess for August, already faces an extremely busy schedule in July, confirmation hearings on Powell's successor are unlikely to begin before September, Senate staff members said.

And, because the Democrats retook control of the Senate in the November elections, they could try to sit on a White House nomination through the November, 1988, presidential election in the hope of preserving the appointment for a Democrat.

Late Friday, Sen. Joseph R. Biden Jr. (D-Del.), chairman of the Senate Judiciary Committee, which will consider the nomination of Powell's successor, warned the Administration not to appoint a hard-line conservative who would "alter significantly the balance of the court."

"The scales of justice should not be tipped by ideological biases. I will resist any efforts by this Administration to do indirectly what it has failed to do directly in the Congress, and that is impose an ideological agenda upon our jurisprudence," Biden said in a statement.

Although not well known by the public, Powell has been an enormously influential figure in legal circles. Because of his position as the swing vote between the liberal and conservative wings of the Supreme Court, many legal experts say that he, more than any other single figure, has shaped the nation's laws since 1972.

Among lawyers appearing before the high court, the standard advice has been to shape one's argument to get Powell's support.

In recent years, Powell has sided often with the court's liberals on civil rights cases. But, in criminal cases, he usually has sided with the conservative side.

Bakke Case Decision

Powell may be most noted for his opinion in the Bakke case of 1978, the first affirmative action case to reach the high court.

In writing for the majority in a 5-4 vote, he said that the medical school at UC Davis could not exclude a white male with superior qualifications to save spaces for black and Latino candidates. However, he said, the university was justified in giving some special preferences to members of underrepresented minority groups.

This compromise opinion epitomized Powell's work. Lawyers and court plaintiffs applauded his fairness and his willingness to see the virtue in both the liberal and conservative positions. Critics on the left and right faulted him for not being consistent.

Although liberals have sharply rebuked Powell for decisions that endorsed the death penalty and upheld anti-sodomy laws, they were bemoaning his loss on Friday.

'Compassionate Voice'

"We have depended on him as a reasonable, compassionate voice on the court," said John Powell, legal director for the American Civil Liberties Union. In 20 civil rights cases decided this year by a single vote, Powell was in the majority every time, the ACLU said.

In addition, women's rights advocates were worried about the fate of the court's 1973 decision upholding a woman's right to an abortion.

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