Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: MONDAY, July 23, 1990 TAG: 9007230231
SECTION: NATIONAL/INTERNATIONAL PAGE: A/1 EDITION: EVENING
SOURCE: RICHARD CARELLI ASSOCIATED PRESS
DATELINE: WASHINGTON LENGTH: Medium
The retirement of the court's leading liberal, Justice William Brennan, will give the court a more conservative bearing. Abortion rights is now the center of attention, but the court is closely divided on other important social issues, such as civil rights and criminal justice, splitting 5-4 in numerous cases.
Speaking a month before Brennan's retirement on Friday, Justice Harry Blackmun predicted the inevitable departure of the court's three liberal octogenarians - himself, Brennan and Justice Thurgood Marshall - would leave conservatives in control for decades to come.
"We shouldn't resent it," Blackmun said. "That's the way the system works. That pendulum swings. It will stay this way now 40 or 50 years, I'm sure."
All eyes are on Roe vs. Wade.
There now appear to be four votes - Chief Justice William Rehnquist and Justices Byron White, Antonin Scalia and Anthony Kennedy - to overturn the court's 1973 ruling that established a constitutional right to abortion.
There also appear to be four votes opposing such a move.
Blackmun, Marshall and Justice John Paul Stevens are strong supporters of abortion rights. And the generally conservative Justice Sandra Day O'Connor has refused so far to cast the fifth vote to reverse Roe vs. Wade and let states outlaw abortion.
The political stakes are enormous.
Republicans took a drubbing in several 1989 elections where abortion was a key issue. Looking ahead to 1992, Bush may be reluctant to be identified as the president who nudged the court into overturning Roe vs. Wade.
The 1990 election year seems pretty sleepy right now, but an abortion rights debate could ignite plenty of November drama. Some senators were advising Bush against any anti-abortion "litmus test" for picking Brennan's successor.
"If you have to have someone who wants to overturn Roe vs. Wade, it's going to be a bloodbath getting the nomination confirmed," Senate Republican Leader Bob Dole said Sunday, "and the same is true on the other side."
Georgetown University law professor Eleanor Holmes Norton expects the subject to dominate confirmation proceedings. "You can bet your bottom dollar that sitting in the Senate are going to be men . . . who will insist on bringing out the views of the justice on this issue," she said.
The president's announced intention to replace Brennan with a "strict constructionist" means a rightward-moving court will get even more conservative.
The impact of Brennan's leaving because of poor health goes beyond the mere loss of a liberal vote, and reflects on the personal dynamics of the court as a political institution.
Combining keen intellect and charismatic charm, Brennan was a master politician and coalition builder who for years blunted conservative gains.
Part of his behind-the-scenes persona including using law clerks as lobbyists in the offices of his fellow justices and writing persuasive memos to fence-sitting court members.
In recent years, if one or more of the court's conservative justices could be attracted to the liberal side of an issue, it was Brennan doing the wooing.
None of the three remaining liberals - Blackmun, Marshall or Stevens - can assume that role easily.
"No one will fill those shoes," said A.E. Dick Howard, a University of Virginia law professor.
Although less successful against Rehnquist's conservative leadership since 1986, Brennan still could claim some victories.
In the 1989-90 term that ended in June, Brennan led the court as it upheld a federal affirmative action plan giving minorities special consideration in awarding television and radio licenses and struck down a ban on flag-burning. Both cases were decided by 5-4 votes.
The affirmative action ruling surprised and delighted many civil rights activists who in recent years have criticized the court's decisions making racial and sexual discrimination more difficult to prove.
Brennan, who joined the court in 1956, was a leader of the liberal majority that through the 1960s expanded individual rights and mandated greater equality for the nation's minorities.
But more recently an increasingly conservative court has curtailed some of the legal doctrines he fashioned, particularly those that limited police powers.
Brennan's successor will join a court now more likely to give greater weight to the frustrations of law enforcement officials than to the asserted rights of those suspected of crime.
by CNB