UNDERLYING the sadness in the tributes to Thurgood...

THEO LIPPMAN JR.

January 28, 1993|By THEO LIPPMAN JR.

UNDERLYING the sadness in the tributes to Thurgood Marshall yesterday was this sense of regret: Oh, if only he had waited a little longer to retire.

Justice Marshall was the last liberal Democrat on this court. The only liberals on the court now are Harry Blackmun and John Paul Stevens, both Republicans, and the only Democrat is Byron White, a conservative.

Justice Marshall retired in June, 1991, at the end of the 1990-1991 term. Rumor had it that he wanted to retire earlier, but he held on because he didn't want a Republican president to replace him with a conservative. When asked if he was going to retire, he used to say, "I was appointed to a lifetime term, and I intend to serve out my term."

At least until a Democrat was back in the White House, he meant. He was the last appointee of a Democratic president, back in 1967. I always figured Marshall finally threw in the towel in June, 1991, because President Bush was riding high in the polls (72-22, approval/disapproval rating in the Gallup Poll), and it seemed unlikely that there would be a Democrat in the White House before 1997. Six more years in dissent he couldn't take.

If Justice Marshall had held on until the beginning of the 1992-1993 term last October, he could have retired confident Bill Clinton would be elected and a Democratic replacement on the court assured.

Now, George Bush was still president then, but the old Senate wouldn't have confirmed his nominee. After Congress adjourned Bush could have given a recess appointment to Clarence JTC Thomas or Willie Horton or whomever he felt he owed a debt. Legally he could have remained a year, but he would surely have withdrawn under pressure once President Clinton made a choice.

Thurgood Marshall was the last Supreme Court associate justice appointee of a Democratic president, but he was not the last man nominated by a Democratic president to be an associate justice of the Supreme Court.

Can you trivia experts name that person? Abe Fortas? Very good. But wrong!

Fortas was nominated and confirmed as associate justice in 1965, two years before Marshall. In June, 1968 Chief Justice Earl Warren announced his retirement. President Lyndon B. Johnson nominated Fortas to be chief justice and a Texas judge, Homer Thornberry, to replace him as associate justice. Both men were LBJ cronies.

Senate Democrats were in the majority and were confident they could zip the nominations thorough. But Richard Nixon was favored to be elected president, so Senate Republicans filibustered the nominations to death. Abe remained an associate justice till scandal caught up with him and he had to resign, and Homer stayed in Texas, where he's still a judge.

Next Thursday: Who would Clinton have nominated?

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