High court to feel effect of election 3 justices likely to make retirement hinge on winner

October 05, 1992|By Lyle Denniston | Lyle Denniston,Washington Bureau

WASHINGTON -- The Supreme Court starts a new term today awash in politics -- some presidential, some judicial -- and with its future membership more uncertain than at any time in years.

The presidential election less than a month from now may well have a direct impact on the plans of at least three members of the court about the timing of their decisions -- now on hold -- to retire from the court.

Future appointments to the court have become an active, if not dominant campaign issue between President Bush and Democrat Bill Clinton -- but the winner of the White House could make no appointments unless there are departures from the court.

At this stage, the court's longest-serving justice, 30-year veteran Byron R. White, is at the center of most speculation about JJTC retirement by next summer. But the voluntary departure of the 75-year-old jurist may occur only if Mr. Clinton is elected and gets to name a successor.

Justice White, the last sitting member of the court to have been named by a Democratic president (John F. Kennedy, in 1962), is described by associates as having stayed longer than he wished because Republicans have held the White House and the judicial appointment power for 12 years. The work of the court has lost its fascination for Justice White, said one longtime friend who declined to be identified.

The court's oldest member, Justice Harry A. Blackmun, who will turn 84 in 38 days, has left the impression with associates that he is likely to remain on the bench two more terms -- and possibly longer, if Mr. Bush is re-elected and thereby gets the chance to choose a replacement.

Justice Blackmun's plans may become somewhat clearer after a reunion with his law clerks later this month.

Chief Justice William H. Rehnquist, whose retirement has been rumored repeatedly since his wife's death last year, has been moving privately to quell that speculation. The chief justice, as loyal a Republican as Justice White is a Democrat, has led some associates to believe that he may remain longer than he might otherwise if Mr. Clinton were to become president.

The potential comings and goings of justices are adding a strong measure of uncertainty within the court just at a time when the era of good feeling there under Chief Justice Rehnquist is being tested anew.

Justice Anthony M. Kennedy, emerging as one of the court's most influential members, has been the target over the summer of a seemingly coordinated attack by very conservative elements within the court and at a high level in the Bush administration's Justice Department because of his position last term on abortion rights.

Within the close-knit network of the Federalist Society here, which has worked hard in recent years to place law clerks in conservative justices' chambers, word has been circulating all summer that Justice Kennedy switched positions on abortion -- ultimately joining with Justice Blackmun, the author of Roe vs. Wade, in a decision to reaffirm in part a women's constitutional right to abortion.

It has been suggested, especially to news reporters and columnists here, that Justice Kennedy changed position because of influence over him by liberal Harvard law professor Laurence H. Tribe -- a suggestion that Mr. Tribe has ridiculed.

Justice Kennedy also appears to have taken the place of Justice Sandra Day O'Connor as a primary target for slashing verbal criticism in the dissenting opinions of Justice Antonin Scalia, perhaps the court's most conservative member.

Just as Justice Scalia lambasted Justice O'Connor in 1989 for refusing to vote then to overrule Roe vs. Wade, last term he coupled similar criticism of Justice Kennedy's role in the abortion decision with a biting critique of Justice Kennedy's major opinion striking down prayers at a graduation ceremony at a public school.

Court sources say Justice O'Connor has never forgiven Justice Scalia for his 1989 attack, and their relationship reportedly has been a lingering source of tension. The tension now may be spreading further behind the scenes of the outwardly serene court.

Meanwhile, speculation continues about who might be named as new justices if vacancies begin to occur in the next presidential term.

Mr. Bush is still believed to want to name Solicitor General Kenneth W. Starr to a vacancy but reportedly also has an interest in being the first to choose a Hispanic-American justice.

The judge who reportedly would have been a Bush nominee earlier if he had had more experience on the bench -- Circuit Judge Emilio M. Garza of San Antonio -- may have come close to defeating his chances for Senate approval by boldly announcing recently his disagreement with the Supreme Court on abortion rights.

Among the names circulating here as potential nominees by Mr. Clinton are New York Gov. Mario M. Cuomo, federal Circuit Judges Abner J. Mikva and Harry T. Edwards of Washington, Amalya L. Kearse of New York City and Stephen Breyer of Boston, and federal District Judge Jose Cabranes of New Haven, Conn. Judge Edwards and Judge Kearse are black; Judge Cabranes is Hispanic-American.

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