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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

The high court now has three, and possibly four, justices who disagree with this opinion. Rehnquist and Justice Byron R. White have voted no in all the abortion cases, saying that the Constitution confers no right to abortion. Justice Antonin Scalia also has spoken against the abortion decision. Justice Sandra Day O'Connor has expressed reservations about the ruling but has not stated whether she favors revoking or perhaps modifying the original 1973 order.

Powell was, former law clerk John C. Jeffries Jr. said Friday, "quintessentially the lawyer as judge. That is, he never brought an ideological meat cleaver to any problem but looked at the facts and the record very carefully and the precedents and each case as it came up."

When asked Friday about the best moment of his term on the court, Powell replied: "Today is one of my worst moments. I leave the court with a great deal of sadness."

Powell, a soft-spoken, gentlemanly Virginian who has been in frail health for several years, said that he decided to quit only in the last few days.

He told Rehnquist on Wednesday that he was strongly considering retirement, according to court press officer Toni House.

When Chief Justice Warren E. Burger stepped down last June, appeals court judge Bork, 60, was viewed by insiders as the front-runner for the vacancy.

But a younger and more vigorous Antonin Scalia, 50, who sat alongside Bork on the U.S. Circuit Court of Appeals in the District of Columbia, got the nod instead.

At the time, the fact that Bork was overweight and a heavy smoker were seen as prime reasons for his being passed over, but recently he has been "on a health kick," one friend said, shedding weight and chewing nicotine gum to give up tobacco.

Bork, although widely admired among conservative academics for his view that judges must rely on the "original intent" of a law or the Constitution, may be best known publicly as the man who in 1973 carried out the "Saturday Night Massacre" during the Watergate scandal. When then-Atty. Gen. Eliot L. Richardson and his deputy, William D. Ruckelshaus, refused to obey President Nixon's order to fire special prosecutor Archibald G. Cox, Bork, then the No. 3 man in the Justice Department, did the job. He said then that he viewed Nixon's order as lawful and felt it was his duty to carry it out.

That action could be a sensitive issue in a Senate confirmation proceeding.

By contrast, Hatch's problem may be constitutional. The Senate has a tradition of confirming it own members when they are appointed to positions over which they have refusal power, but the Constitution forbids appointing a legislator to a federal position whose salary has been increased during that legislator's term. A pay raise for justices and other federal officials went into effect in January.

Legal experts have suggested that Congress could vote to reduce Hatch's salary, but others noted that Hatch's opponents could use the issue to vote against the 53-year-old conservative.

One White House official cautioned that the choices are not limited to Bork and Hatch.

Other names mentioned Friday included conservative appeals court judges Richard Posner of Chicago, J. Clifford Wallace of San Diego and John T. Noonan Jr. of San Francisco.

For the White House, the nomination poses a dilemma. A strongly conservative candidate, if confirmed, could achieve Reagan's goal of accomplishing his conservative social agenda in areas such as school prayer and abortion. But a strongly conservative candidate would have the most difficulty winning confirmation from the Senate.

Rehnquist Battle

The conservative Rehnquist was confirmed as chief justice last summer, but only after a bitter battle with Senate Democrats over allegations of insensitivity to minorities and women.

When Powell was chosen by President Nixon, his nomination was widely applauded and he was easily confirmed by the Senate.

Although he has made many difficult decisions since assuming his spot on the bench, his decision to depart may have been the most difficult. Powell told reporters that he had spoken at length with his four children, as well as his wife, Josephine, but he did not discuss the move with his colleagues.

He said his son, also a lawyer, told him: "Dad, it's a whole lot better to go out when some people may be sorry than it is to wait until when you decide to go ahead (and) people say, 'Thank God, we got rid of that old gent.' "

Powell said he considered it a "privilege" to work on the court and did not mind working six days a week and half a day on Sunday.

"I am tired but no more so than I have been at the end of recent terms," he said in his statement. And he said that his health, which he noted has "not been robust" through the three major surgeries he underwent during his term, is currently good.

May Sit on Appeals Court

"I therefore expect to continue to be active in appropriate public service when this is available. As other retired justices have done, I also will consider sitting on courts of appeals--though I would not expect to do this on a regular basis."

Powell said that he particularly looks forward "to spending more time with our children and grandchildren."

Staff writers David Lauter and James Gerstenzang contributed to this story.

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