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Farewell to Powell

June 28, 1987

For several years it has been clear that Justice Lewis F. Powell Jr. was one of the single most powerful people in America. On a U.S. Supreme Court more or less evenly divided between right and left, Powell occupied the moderate center, frequently casting the decisive fifth vote that turned minority views into opinions of the court. In particular, he has provided the fifth vote in abortion and affirmative-action cases, and his retirement, announced last week on the final day of the court's term, puts both areas in jeopardy.

Though President Reagan has named Sandra Day O'Connor and Antonin Scalia to the court and has elevated William H. Rehnquist to be the chief justice, these appointments have not altered the court's basic ideological makeup. If the President nominates an ideological conservative, the right could count five votes on the Supreme Court, and it could ratify the Reagan-Meese-Rehnquist political agenda and make it the law of the land into the next century.

This means that easy access to abortion could be reversed. It means that the course of race relations in this country could be changed. It means that the court could stand aside and allow civil liberties and the rights of criminal defendants to be curtailed. It means that the court would favor the rights of the authorities over the rights of individuals and that it would shirk from enforcing the Bill of Rights.

As a measure of Powell's importance in these areas, it is worth noting that in 20 civil-liberties cases that the court decided by one vote during the term just ended, Powell cast the deciding vote in each case. Some of these decisions went one way and some the other. An ideological Reagan appointee is likely to decide them all one way--Rehnquist's way.

Lewis Powell has been a good, fair and honest justice who understood that the role of the court is frequently to balance conflicting interests and rights. In that sense he could be called a judge who expressed the essence of a truly conservative judicial philosophy. He did not always decide cases as we would like. For example, he provided the fifth vote last year upholding Georgia's sodomy law, and this year he cast the fifth vote upholding Georgia's death-penalty law despite overwhelming evidence that it was applied in a racially discriminatory way. But, in his 15 years on the court, Powell has been willing to hear and consider all sides in a dispute and to arrive at an answer with a minimum of preconceptions.

In seeking to replace Powell, the President should look for another jurist like him--a centrist, a coalition builder rather than a ready vote for a political litany. And the Senate, which must approve the nomination, should consider whether the nominee's political and legal views fit the nation or just the President.

We have not always agreed with Powell's decisions, but we respect the integrity of his decision-making and his genuine effort to reach the wise decision in complicated, difficult cases. This is the highest attribute of a Supreme Court justice, and the President and the Senate should put it above all others in finding and seating a replacement. Many important questions of law and policy hinge on this nomination.

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