WASHINGTON — The retirement of Justice William J. Brennan Jr. could mark the beginning of a new era for the Supreme Court--one in which moderate-to-conservative appointees are clearly in control and the future direction of American law will depend on the unity or divisions within their ranks.
Brennan's departure gives President Bush his first opportunity to nominate a Supreme Court justice. Bush's appointee conceivably could add one more ally for those on the high court seeking to overturn Roe vs. Wade, the historic 1973 decision legalizing abortion.
Because of the extraordinary political importance of abortion, Bush's nominee probably will face rigorous Senate nomination hearings. Indeed, the nomination could become the center of a major political fight, similar to the one set off by President Ronald Reagan's choice of Robert H. Bork in 1987 to replace Lewis F. Powell Jr. Bork's nomination was defeated.
In 1987, Bush, then vice president, strongly supported the nomination of Bork. And, during his own campaign for the White House in 1988, Bush said he would pick justices who "interpret the Constitution, not legislate from the bench."
Months ago, realizing that the age of many of the high court's members would sooner or later give him a vacancy to fill, Bush asked for a list of possible nominees, according to Administration officials, who confirmed that a list of roughly a dozen names was prepared.
For most of Bush's term, speculation about possible high court nominees has focused on Kenneth Starr, a former judge of the federal court of appeals in Washington who is now solicitor general, the government's chief advocate before the Supreme Court. Starr is generally seen as fitting the moderate-conservative mold on most issues.
But, if Bush follows the pattern of other presidents, he will also consider the possible uses of a high court nomination as a way of wooing important constituencies.
Reagan gained politically by appointing Sandra Day O'Connor, the only woman to serve on the high court. Lyndon B. Johnson scored similar gains by appointing Thurgood Marshall, the high court's only black member. Earlier presidents had solidified support in the Jewish community for decades by maintaining a "Jewish seat" on the court, a tradition that ended when Richard M. Nixon appointed Harry A. Blackmun to replace Abe Fortas in 1970.
Bush could reach out to any one of those groups or, perhaps, to the increasingly potent Latino community by appointing the first Latino justice.
Among possible Latino candidates would be Ferdinand F. Fernandez, whom Bush placed on the 9th Circuit Court of Appeals in Los Angeles. Other potential nominees could include Clarence Thomas, a conservative black lawyer whom Bush appointed to the federal court of appeals in Washington last year, and Edith Jones, a judge on the New Orleans-based federal 5th Circuit Court of Appeals who knows Bush from her days as counsel to the Texas Republican Party.
Pamela Rymer, another Bush appointee to the 9th Circuit, also has been mentioned as a possible high court nominee. The Reagan Administration briefly considered her for the court in 1987 before choosing Anthony M. Kennedy.
Several other judges have long been considered possible Republican appointees to the high court: Roger Miner and Ralph K. Winter, both of the 2nd Circuit, based in New York, and Patrick Higginbotham of the 5th Circuit, who is based in Houston, Bush's adopted hometown. Miner is Jewish.
In addition, conservatives have been championing Utah Sen. Orrin G. Hatch, the leading conservative Republican on the Senate Judiciary Committee and a fervent abortion opponent. The coalition of groups that helped defeat Bork's nomination would almost certainly fight Hatch, but the Senate's tradition of favoring its own members might ease his way.
Whomever Bush chooses, Brennan's resignation means much more than a change in one vote out of nine. His departure removes from the bench the most effective remaining link to the activist era of former Chief Justice Earl Warren, under whose leadership the court handed down a series of rulings extending individual and civil rights.
Brennan had served as the crucial behind-the-scenes playmaker for the liberal wing of the court, not only during the Warren era but in the two decades since. Now, the only solid liberal vote left will be that of Brennan's inveterate ally, Justice Marshall, who is 82 and in uncertain health. Marshall has never had as much influence with his fellow justices as Brennan.
The court already has four members ranging from moderate to conservative who were appointed by Reagan: Justices O'Connor, Antonin Scalia and Kennedy and Chief Justice William H. Rehnquist. On certain kinds of cases, generally including abortion and criminal law, conservative forces can also count on the vote of Justice Byron R. White, who was appointed by President John F. Kennedy.