Powell Retiring; Court Fight Seen : Democrats Likely to Resist Reagan Bid for High Bench Conservative Majority

Times Staff Writers

Justice Lewis F. Powell Jr., for the last 15 years the pivotal vote in many of the Supreme Court's most important decisions, ranging from abortion to affirmative action, unexpectedly announced his retirement Friday for reasons of age and health.

The move on the last day of the court's current term gives President Reagan the opportunity to replace the 79-year-old Powell, a moderate, with a conservative and form a clear conservative majority on the nine-member court.

And the resignation is expected to set the stage for an even bigger political struggle with the Senate than last year's confirmation fight over Chief Justice William H. Rehnquist.

"This has been a difficult decision," Powell said in a statement. " . . . I leave . . . with a considerable measure of sadness."

Appointed by Nixon

Powell, who was appointed by President Richard M. Nixon, said he was motivated by the approach of his 80th birthday on Sept. 19, "by having served 15 1/2 years when I contemplated no more than 10 years of service and by concern--based on past experience--that I could handicap the court in the event of reoccurrences of serious health problems." He underwent prostate cancer surgery in 1985.

Speculation on a replacement centered on appeals court judge Robert H. Bork, a favorite of conservatives, and Sen. Orrin G. Hatch (R-Utah), who led the Senate fight for Rehnquist and has been the Administration's prime defender during the Iran- contra hearings.

The White House said that Reagan would meet with his advisers Monday to begin going through a "short list" of possible nominees.

Reagan heard of Powell's decision only moments before it was announced at the court. The President praised Powell during an afternoon phone conversation and issued a statement calling the departing jurist "wise and generous . . . truly a justice's justice."

Reagan to Act Quickly

The President pledged to move quickly on a proposed replacement, saying that the court needs to be at full strength by the start of its term in October.

Because Congress, which plans to recess for August, already faces an extremely busy schedule in July, confirmation hearings on Powell's successor are unlikely to begin before September, Senate staff members said.

And, because the Democrats retook control of the Senate in the November elections, they could try to sit on a White House nomination through the November, 1988, presidential election in the hope of preserving the appointment for a Democrat.

Late Friday, Sen. Joseph R. Biden Jr. (D-Del.), chairman of the Senate Judiciary Committee, which will consider the nomination of Powell's successor, warned the Administration not to appoint a hard-line conservative who would "alter significantly the balance of the court."

"The scales of justice should not be tipped by ideological biases. I will resist any efforts by this Administration to do indirectly what it has failed to do directly in the Congress, and that is impose an ideological agenda upon our jurisprudence," Biden said in a statement.

Although not well known by the public, Powell has been an enormously influential figure in legal circles. Because of his position as the swing vote between the liberal and conservative wings of the Supreme Court, many legal experts say that he, more than any other single figure, has shaped the nation's laws since 1972.

Among lawyers appearing before the high court, the standard advice has been to shape one's argument to get Powell's support.

In recent years, Powell has sided often with the court's liberals on civil rights cases. But, in criminal cases, he usually has sided with the conservative side.

Bakke Case Decision

Powell may be most noted for his opinion in the Bakke case of 1978, the first affirmative action case to reach the high court.

In writing for the majority in a 5-4 vote, he said that the medical school at UC Davis could not exclude a white male with superior qualifications to save spaces for black and Latino candidates. However, he said, the university was justified in giving some special preferences to members of underrepresented minority groups.

This compromise opinion epitomized Powell's work. Lawyers and court plaintiffs applauded his fairness and his willingness to see the virtue in both the liberal and conservative positions. Critics on the left and right faulted him for not being consistent.

Although liberals have sharply rebuked Powell for decisions that endorsed the death penalty and upheld anti-sodomy laws, they were bemoaning his loss on Friday.

'Compassionate Voice'

"We have depended on him as a reasonable, compassionate voice on the court," said John Powell, legal director for the American Civil Liberties Union. In 20 civil rights cases decided this year by a single vote, Powell was in the majority every time, the ACLU said.

In addition, women's rights advocates were worried about the fate of the court's 1973 decision upholding a woman's right to an abortion.

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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