Three Justices in Their 80s : Next President to Control Balance of Supreme Court

On Nov. 12, four days after American voters elect a new President, Supreme Court Justice Harry A. Blackmun, the author of the 1973 decision legalizing abortion, will celebrate his 80th birthday. But if Republican George Bush is then the President-elect, that will not mark a happy occasion for liberals.

Blackmun will become the third member of the court’s once-dominant liberal bloc to reach his 80s, joining William J. Brennan Jr., 82, and Thurgood Marshall, 80. At least according to the actuarial tables, the odds are good that Bush would be able to replace one or more of them sometime during his tenure with a justice more to his own liking.

“Whether God is a liberal or a conservative,” says former Justice Department official Gary McDowell, “you know these three guys can’t last forever.”

The best that Bush’s Democratic opponent, Michael S. Dukakis, can hope for is to maintain the court’s precarious balance between liberals and conservatives. If his record as governor of Massachusetts is a guide, a President Dukakis would establish an advisory body of professionals to help him find judicial candidates--but he would also name mostly liberals and Democrats to the federal bench.

Bush, by contrast, is in a position to change the court’s balance. By replacing Brennan, Marshall or Blackmun with a conservative, Bush probably could cement a conservative court majority for decades.

Three of the most conservative members of the nine-member court--Chief Justice William H. Rehnquist, 64, and Justices Antonin Scalia and Anthony M. Kennedy, both 52--are much younger than the liberals. At 71, Justice Byron R. White is the oldest of the court’s conservatives, and Justice Sandra Day O’Connor, 58, also sides with the conservatives on many issues.

A court majority could help Bush accomplish what otherwise might be out of his reach--progress on the conservative social agenda. Congress, for the most part, has declined to tackle these issues, and even President Reagan, elected twice with the fervent backing of the political right, has been unable to use his own authority to advance the social agenda.

“That’s why the stakes in this election are enormous,” says McDowell, now vice president of the National Legal Center for the Public Interest.

With an extra conservative, he says, the Rehnquist court would probably reverse women’s abortion rights, strengthen the hand of police and prosecutors, give religion a greater role in public life and outlaw affirmative action programs that give job preferences to minorities and women.

‘Ball Game Will Be Over’

On this much at least, liberals agree. “If Bush wins,” says liberal law professor Herman Schwartz of American University, “I think the ball game will be over for the judicial protection of individual liberties and civil rights.”

Despite the pivotal impact that the next President may exert, neither Bush nor Dukakis has made much of an issue of the future of the Supreme Court. But the public record of the two candidates provides some insights into the kinds of justices they would be likely to name.

As vice president, Bush has spoken admiringly of his late friend, middle-of-the-road Potter Stewart, as a Supreme Court justice who refused to “succumb to ideological labels” on the high court.

As a presidential candidate, however, Bush has trumpeted his conservative stands against abortion and in favor of school prayer, tough drug laws and the death penalty. And on the campaign trail, he has promised to appoint federal judges with similar views.

‘Want to Legislate’

“That’s the crux of our argument about the American Civil Liberties Union,” says Bush spokesman Mark Goodin. “It has to do with what kinds of judges will go on the federal bench. The vice president wants judges who will interpret the law, not make it. You can bet they won’t be people who have these leftist positions and who want to legislate from the bench.”

Dukakis, by contrast, said in a Village Voice interview in April that the justices he most admired were Brennan, Marshall and the late Louis Brandeis, Hugo Black and William O. Douglas. All five are considered liberals.

Dukakis has apparently decided that as a campaign issue, the Supreme Court is a loser. He mentions the court only before black and overwhelmingly Democratic audiences.

By contrast, the previous two Democratic presidential nominees, Jimmy Carter and Walter F. Mondale, warned repeatedly that their opponent, Ronald Reagan, would load the court with doctrinaire conservatives. Reagan trounced them both.

Nominating Council

Dukakis, unlike Bush, has a record of appointing judges. As governor of Massachusetts, he established a Judicial Nominating Council consisting largely of lawyers and law professors to examine the qualifications of candidates for state judgeships and supply the governor with three names for each opening. Dukakis, a Harvard Law School graduate, then interviews each candidate before making his choice.

Dukakis spokesman Mark Gearan contrasts Dukakis’ careful and thorough approach to picking judges with Bush’s surprise choice of Dan Quayle as his running mate. “Dan Quayle is Exhibit A,” Gearan says. “This was a crucial choice, and it is instructive as to how he went about it and who he selected.”

In Massachusetts, Dukakis generally gets high marks for ending the practice of giving judgeships to the governor’s cronies. Haskell Kassler, a Boston lawyer who chairs the nominating council, says Dukakis put to rest the old joke that “a judge is a lawyer who knew a governor.”

“The process has been opened up under Dukakis, and highly professional people get appointed,” says Boston College law professor Robert Bloom, an expert on the state courts. According to the governor’s office, 20% of Dukakis’ 124 judicial appointees have been women and 12% have been blacks or Latinos.

Choices Criticized

But the judicial philosophy and the voting record of some of Dukakis’ top court appointees have come in for vocal criticism from some lawyers and state legislators.

Boston University law professor William Ryckman describes Dukakis’ three appointees to the seven-member Massachusetts Supreme Judicial Court as “liberal activists. They believe the courts must play a paramount role in protecting citizens from their state Legislature.”

The state high court has frequently thrown out laws that were enacted with popular support. It has struck down three death penalty laws, including one enacted after the state constitution was amended to say that nothing in it “prohibited” the death penalty.

Dukakis appointees also ruled that the state must pay for abortions for poor women, contrasted with a 1980 U.S. Supreme Court ruling that said women had a right to get an abortion but were not entitled to have the government pay for it.

Drug Traffickers

Two Dukakis high court appointees dissented from a ruling that upheld mandatory sentencing laws for drug traffickers. Paul Liacos and Ruth Abrams said the law constituted “cruel and unusual punishment.”

The two justices also joined with Dukakis’ chief justice, Edward Hennessey, in successfully urging the governor in 1977 to veto a law requiring teachers to begin the school day by leading students in the Pledge of Allegiance.

In one of their most controversial actions, Dukakis’ three appointees formed the nucleus of a 4-3 court majority that ruled in February that the state law making it a crime to take sexually exploitative photographs and films of children represented an unconstitutional violation of the First Amendment’s guarantee of free speech.

The court, ruling in the case of a man who took nearly nude photos of his 14-year-old stepdaughter, said the law could be read to make it a crime to take a photo of a baby at the beach.

Justices to Hear Case

Scrambling to undo the ruling’s political damage, Massachusetts Atty. Gen. James Shannon filed an appeal with the U.S. Supreme Court, which will hear the case in January. And Dukakis pushed through the state Legislature an amended child pornography law that makes it a crime to take photos of children with “lascivious intent.”

If Dukakis is elected in November, he may well become the first Democratic President to choose a Supreme Court justice since Lyndon B. Johnson put Marshall on the court in 1967. No vacancies occurred on the court during the Administration of Jimmy Carter, the only Democratic President in the last 20 years.

The court has not taken a sharp right turn during those two decades in large part because several nominees of Presidents Richard M. Nixon and Gerald R. Ford proved to be more moderate than promised. Blackmun, appointed by Nixon, proved downright liberal, and John Paul Stevens, 68, named by Ford, usually votes with the other three liberals.

But liberals do not want to take a chance with a President Bush. “If Bush wins,” says Schwartz of American University, “I think the curtain will fall on one of the few liberal phases in the Supreme Court’s history.”