Right Turn Ahead?

By Ed Magnuson

An era ended last week. With the abrupt resignation of Justice William Brennan, the court that Chief Justice Earl Warren led into an age of liberal judicial activism passed into history.

As the most influential survivor of that panel, Brennan waged a sometimes lonely fight over the past two decades to stem a growing conservative tide in the Supreme Court. Using both his intellect and his gregarious personality, he tried -- not always successfully -- to slow the steady erosion of the landmark decisions on civil liberties that he had written or helped shape. His departure, which may be followed soon by those of the court's two remaining aging liberals, could set the stage for a total transformation of the high court. It could become a body more skeptical of -- if not hostile to -- abortion rights, affirmative action, strict separation between church and state and protection of free speech.

That prospect inspired jubilation among right-wingers, who immediately began pressuring George Bush to fill the vacancy with a conservative. "This is a seminal event in the return of the rule of law," exulted Michael Carvin, a former Justice Department official who helped screen judicial candidates for Ronald Reagan. "If there is anyone who represents the Warren Court's judicial activism, it is Brennan. He is the intellectual leader on the left of the court. Some important cases will go the other way when he is replaced."

At the other end of the political spectrum, alarms sounded. Women's organizations promised to battle any nominee likely to provide the key vote that would overturn Roe v. Wade, the 1973 ruling that established the right to abortion. Referring to the political onslaught by civil rights groups and liberal forces that derailed Ronald Reagan's effort to elevate Robert Bork to the high court in 1987, Democratic consultant Roger Craver predicted that "the Bork nomination will seem mild compared with the political mobilization and pressure that will be brought upon the Senate over this nomination."

At 84, Brennan remains keen of mind, but his body is ailing. He fainted about three weeks ago while waiting to board a plane at Newark airport, but revived and went on to take a Scandinavian cruise. After his return to Washington, however, doctors told him he had suffered a mild stroke and urged him to ease up, advice Brennan took. On Friday night he sent a hand-delivered letter to the White House. Citing "my advancing age and medical condition," Brennan wrote that he was resigning "effective immediately."

The news was radioed to the President aboard Air Force One as he was flying back to Washington from a campaign trip to Montana. He termed it "a complete surprise" and added, unnecessarily, "obviously, his resignation is accepted." One of his exultant senior advisers was less restrained, declaring, "It's great news for conservatives and a great political opportunity for the President."

That is undeniable. As was Reagan, who appointed three conservative Justices -- Sandra Day O'Connor, Antonin Scalia and Anthony Kennedy -- Bush is in a position to pacify the restive right and propel the court more speedily on its current course. With two other Justices, Thurgood Marshall, 82, and Harry Blackmun, 81, in fragile health and rumored ready to follow Brennan into retirement, the Bush imprint on the high court could become every bit as significant as Reagan's.

Bush has been preparing for that possibility almost from the day he took office. He asked his aides then to assemble dossiers on potential appointees. At 8 a.m. on Saturday, a team led by Attorney General Dick Thornburgh, White House counsel C. Boyden Gray and chief of staff John Sununu met with Bush to sort through those names. Bush had declared on Friday, "I want somebody who will be on there not to legislate from the bench but to faithfully interpret the Constitution. So that gives me a wide latitude." During his 1988 campaign, Bush was less fuzzy about his criteria, promising to choose judges "who will show more compassion for the victims than they do for the criminals."

For the White House, Brennan's resignation could not have come at a more propitious time. The President has angered the Republican right by backing away from his "no new taxes" pledge and by showing a willingness to compromise on a new civil rights bill aimed at softening recent high-court rulings that make it more difficult for minorities to win discrimination cases against employers. Bush's appointment of a staunchly conservative Justice "could solve a lot of problems for us," said a top presidential political adviser. "This is an issue where he could easily and naturally make a choice that will appease the conservatives. It's the one thing they really care about."

At the top of the right-wing agenda is the repeal of Roe v. Wade. O'Connor, the court's only woman, has seemed sympathetic to such a reversal but reluctant to provide the decisive vote in a court split 5 to 4 on the issue. But if another antiabortion Justice joined the bench, O'Connor could take refuge in a 6-to-3 majority.

Brennan, an Irish Roman Catholic and Democrat, was plucked from the New Jersey Supreme Court in 1956 by Dwight Eisenhower, who hoped that the nomination would help undermine Democrat Adlai Stevenson's liberal challenge to his bid for a second term. Three years earlier Eisenhower had appointed Warren, the Republican Governor of California. He later pointed to Warren and Brennan as two of the "biggest mistakes" he had made.

Brennan, who sprinkled his off-bench conversations with profanity and wrote crisply clear opinions, had an unusually collegial approach to finding the often elusive fifth vote needed to support his views. He would sometimes dispatch his law clerks to find out from their fellows what points bothered other Justices about his position. Then, in early drafts, he would deftly tailor his arguments to overcome their objections. His sharply honed writing often carried the day.

+ Arriving on the court shortly after the 1954 Brown v. Board of Education decision that struck down racial segregation, Brennan joined the judicial march toward civil rights. When Arkansas Governor Orval Faubus tried to block the entry of nine black students to Little Rock's Central High School in 1957, Brennan shaped a unanimous decision that "no state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it."

Ever vigilant against police excesses, Brennan castigated his colleagues for their refusal in 1981 to review a suit brought by lawyers for a 13-year-old girl who, during a sweep to detect drugs, had been humiliatingly sniffed by police dogs in her classroom, then strip-searched. He denounced the action as "a violation of any known principle of human decency."

Brennan's broad interpretation of the right to free speech led him to what is generally considered his most famous decision: New York Times Co. v. Sullivan, which requires public officials to prove "actual malice" in filing libel suits against publishers and broadcasters. Last year Brennan crafted the majority opinion for a 5-to-4 court decision that upheld the constitutional right to burn the American flag as a form of political protest.

But Brennan admits that he stumbled in his effort to define obscenity. One of his earliest opinions, in 1957, said an expression was not protected by the First Amendment if "to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest." But in 1973 he conceded that all such vague wording led only to "hopeless confusion." He recently told New Yorker writer Nat Hentoff, "I finally gave up. If you can't define it, you can't prosecute people for it."

Brennan never gave up, however, in fighting the death penalty, advocating affirmative action to correct racial wrongs and defending the one-man, one- vote principle to define state and local election districts. Yale Kamisar, a University of Michigan law professor, calls Brennan "one of the most effective Justices of all time. He could write with power and style, and he had enormous influence." Says Columbia law professor Vincent Blasi: "There have been great dissenters, such as Oliver Wendell Holmes, and great leaders of court majorities, such as John Marshall. But Brennan was the only Justice in the court's history to excel in both roles."

Speculation immediately focused on a wide range of possible replacements. Among the most prominent: U.S. Solicitor General Kenneth Starr; U.S. Trade Representative Carla Hills; two Fifth Circuit Appeals Judges, Edith Jones of Houston and Patrick Higginbotham of Dallas; and Thornburgh. Bush also has given Gray a list of at least three Hispanics he wanted checked out as possible Justices.

Among Bush's closest advisers, one faction, led by Secretary of State James Baker and Treasury Secretary Nicholas Brady, may prod Bush to choose a moderate conservative to avoid the type of Senate fight that led to the rejection of Bork. They are expected to argue that since Bush may have a chance to fill more vacancies, there is no need to antagonize Congress in an election year.

At week's end, however, Bush insisted that he was "not afraid of a nomination fight." And no matter whom he selects, he may get just that. Conservative expectations are running high. Liberals, consumed by foreboding, are gearing up for a battle even as they mourn the departure of one of their champions.

With reporting by Dan Goodgame/Washington and Andrea Sachs/New York