Picking a Supreme Court Justice to Perpetuate the Reagan Legacy

Time was running out for Ronald Reagan and the leading contenders jockeying for top slot on the Justice Department’s “short list” of potential nominees for the next opening on thS. Supreme Court.

But when Justice Lewis F. Powell Jr. announced on Friday that he will step down, the Reagan Administration suddenly had its best chance to turn the court around--something it has tried to do, unsuccessfully, with its two previous appointments. Powell has been at the fulcrum of power within the court, casting the pivotal vote on such major issues as abortion, affirmative action and the death penalty. But his decision to leave was the most important of his career. For in so doing he sided not with the liberals or the moderates--but with the Reagan conservatives.

If a vacancy had not come now, Senate confirmation of any nominee would probably have been impossible next year--given Democratic control of the Senate, the President’s lame-duck status and his diminished influence after the Iran- contra affair. Even now, because the court’s ideological balance will shift, Senate confirmation can be expected to be hard won for any nominee.

In their race for the court, these contenders are concerned about never having another shot at an opening. Like others in the past, they have waged a quiet campaign. But they know more than the luck of the draw is needed. Ideological kinship and political associations, more than merit, will determine who gets the nomination.

Most of the judicial candidates gathered at a recent conference here, along with Chief Justice William H. Rehnquist, Atty. Gen. Edwin Meese III and influential legal scholars. They exchanged views on constitutional interpretation and lamented the court’s continued liberal-to-moderate direction. As one influential contender remarked, “The court will be lost if the Democrats win the next election.”

A leading contender is California’s J. Clifford Wallace, a San Diego-based judge on the U.S. 9th Circuit Court of Appeals. He is well-positioned because of his political connections and the efforts he marshaled to gain recognition within Washington legal and political circles.

Lincolnesque in figure and likable in manner, Wallace disclaims running for the court. He said, as early as 1981, that he feels “very strongly the office should seek the man, and not the man the office.” Yet, he delights in the attention that comes with being on the short list: “It’s nice to be trotted out into the ring with the high-grade cattle.”

Others know him as a man with a mission--a mission that includes becoming the first Mormon on the Supreme Court. In the words of a fellow judge, “He’s definitely got his eyes on the court.

Like another prime contender, District of Columbia Appellate Court Judge Robert H. Bork, Wallace has long been pushed for a Supreme Court appointment. Both were on White House short lists in 1975, when President Gerald R. Ford appointed John Paul Stevens; they were considered again in 1981 and 1985, losing out to Sandra Day O’Connor and then Antonin Scalia.

At 58, Wallace is slightly younger than Bork. Yet, he also faces an age problem; if he is passed over this time, future Republican Presidents would probably pick younger jurists. Wallace’s advantage lies in his reputation as an amiable team player, more clever than combative. Bork is strongly favored by ranking Justice Department officials, even though he is viewed by some as too outspoken, too independent and not ideologically predictable. Moreover, confirmation hearings on Bork might become mired in controversy over his 1973 role as the acting attorney general who fired Archibald Cox, the special Watergate prosecutor. The Administration should be particularly sensitive to reopening the Watergate controversy at a time when it is battling not only Congress but a special prosecutor now investigating the Iran- contra cover-up.

Appointed to the district court in 1970 and elevated to the appellate bench in 1972 by President Richard M. Nixon, Wallace has a track record opposing the Warren Court’s liberal jurisprudence. He is more experienced and less controversial than others frequently mentioned. Reagan Appellate Court Judges Richard A. Posner and Frank H. Easterbrook, for example, are highly touted by conservative groups. But they are associated with University of Chicago Law School’s economic theories of law that sometimes run counter to the strict constructionism of traditional conservatives.

Wallace, increasingly visible in Washington, does not have the political liability of two other leading candidates. Both are also Mormons who helped shape Reagan’s legal-policy agenda. Judge Roger J. Miner of the U. S. 2nd Court of Appeals is also frequently mentioned.

Rex E. Lee was solicitor general in Reagan’s first term and enjoys the respect of the old-time Republican legal Establishment. But he is opposed by New Right conservatives for not aggressively pushing their views on abortion, affirmative action and criminal justice.

Sen. Orrin Hatch (R-Utah), by comparison, is a darling of the New Right. His close ties to the Justice Department and defense of controversial Reagan policies and appointments endear him to the Administration. But this could hurt him in winning support from moderate Senate Republicans and liberal Democrats. It could even curb the Senate’s proclivity for giving one of its own an appointment. Hatch may already be disqualified because he voted on recent pay increases for the justices. The Constitution forbids any member of Congress from assuming an office for which he voted a salary increase during an elected term. That alone could delay, if not deny, confirmation--something the Administration must avoid at all cost.

Given the political liabilities of others in the running, Wallace is a major contender. His record--”solid, not brilliant”--is compatible with Reagan’s agenda for judicial reform. With some 450 majority opinions under his belt, Wallace demonstrates little intellectual sympathy for such landmark rulings as Miranda or those barring admission of illegally seized evidence at trial. In criminal justice decisions, Wallace decided for prosecutors about 85% of the time. He has no truck with rulings favoring abortion, affirmative action or bans on organized school prayer. He is, as one lawyer comments, “Insensitive to government abuse of power.”

His views will trouble moderates and liberals, but the Administration can defend his record as mainstream. “In a circuit noted for the number of its reversals by the Supreme Court,” University of Santa Clara Law School Dean Gerald E. Uelmen points out, “Judge Wallace has compiled one of the lowest reversal rates in recent years.”

What would make Wallace especially attractive to the White House is his attitude toward precedent; he does not share traditional conservatives’ reverence for it. He is allied with the Administration attack on activist liberal judges, including Justice William J. Brennan Jr. Wallace warns: “The activist judge must not assume, particularly in constitutional cases, that judicially restrained successors will let stand every misconstruction of the Constitution.”

As an appellate court judge, some who have practiced before Wallace say he can be “result-oriented and stretches--or misconstrues--precedents.” But as a Supreme Court justice--unafraid to reverse prior rulings--Wallace could prove to be just what the Administration needs to turn the court around.

Concuring with Meese, Wallace sees the Constitution as rigid and lifeless. Judges, according to him, should read the Constitution narrowly, literally and historically, even if that means sanctioning unwise or unjust laws.

Other factors put Wallace high on the list of potential Reagan nominees. He has a long personal and working relationship with former Chief Justice Warren E. Burger. Wallace’s expertise in judicial adminstration could prove another asset separating him from the pack. Rehnquist is less interested than his predecessor in such matters and could be aided by someone like Wallace--much as Chief Justice Earl Warren relied on Justice Tom C. Clark to handle many extrajudicial assignments.

Wallace enjoys the support of powerful Senate leaders, including the former chairman of the Judiciary Committee, Strom Thurmond (R-S.C.), who had him testify on many occasions and has endorsed his appointment to the court. And, like Scalia, Bork and Hatch, Wallace is closely tied to conservative Washington think tanks, notably the American Enterprise Institute. These connections, along with several articles on judicial review published since 1981, buttress Wallace’s scholarly credentials.

Wallace and Bork are likely to be the major contenders. The nomination of either, however, will be the result of a calculated campaign. It would also signal a compromise within the Reagan Administration accommodating the New Right conservatives and moderate Republicans seeking to secure a Senate confirmation. More controversial--and intellectually formidable --conservatives like Bork would be sacrificed. If the Administration still goes ahead with Bork, it takes a greater risk of prolonged hearings and a potential Senate defeat. The question now is what strategy the White House will adopt in an effort to secure Reagan’s most lasting legacy.