Supreme Court Justice William Brennan`s surprise resignation gives President Bush an opportunity to nominate a successor whose views on two of the most controversial issues of the day-abortion and civil rights-are more conservative and compatible with his own.
But it also challenges Bush to come up with a candidate whose current life and previous views can withstand the pressure of a Senate confirmation process that has become increasingly contentious.
The president was to begin his personal nomination process-one of the most powerful instruments possessed by a chief executive to influence the nation-Saturday at the White House at a meeting with his top legal advisers, Atty. Gen. Dick Thornburgh, Chief of Staff John Sununu and Boyden Gray, the White House counsel.
The sudden decision by the 84-year-old Brennan to resign for health reasons Friday not only gives Bush his first opportunity to shape the nation`s highest court, but it is a rare opportunity for a president to name the justice who will surely provide a swing vote on some of the most divisive issues of constitutional law.
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The selection of a new justice could become an important political issue in this fall`s elections as well. The nominee, along with his or her current and past thinking on abortion, affirmative action and other social issues, will be scrutinized by legal scholars and political interest groups.
Although Bush insisted he was ”not afraid of starting a nomination fight,” legal and political analysts said the president is likely to choose a person who could be easily confirmed by the Senate and one who would not create an ideological battle on Capitol Hill.
Among those considered to be front-runners are several moderate conservatives, including Solicitor General Kenneth Starr; Laurence Silberman, a U.S. Court of Appeals judge in Washington; and Edith Jones, another federal appellate judge in Texas and a friend of the president.
”I`ve always said I want somebody who will be on there not to legislate from the bench but to faithfully interpret the constitution,” Bush told reporters aboard Air Force One en route to Washington from Cheyenne, Wyo., where he had toured the nation`s MX missile arsenal. ”So that gives me a wide latitude.”
Pressed on the judicial philosophy he would seek, Bush said: ”I expressed what I would do when I was running for president . . . and it`s just along broad lines of strict construction.”
The term ”strict construction” has come to mean interpreting the Constitution in the narrowest sense, a view Brennan certainly did not share in his decisions on liberalizing abortion laws and supporting affirmative-action programs.
”I assume he (Bush) is looking for someone who shares his philosophy, but no president can be sure how an appointee will vote once on the court,”
said conservative Sen. Orrin Hatch (R-Utah), who has been considered in the past for a seat on the court.
Other names mentioned include Frank Easterbrook and Richard Posner of the U.S. Court of Appeals in Chicago; Pasco Bowman, a federal appellate judge in Kansas City, Mo.; Abraham D. Sofaer, a former federal judge who until recently served as a State Department counselor; Roger Miner, a U.S. Court of Appeals judge in Albany, N.Y.; and Ralph Winter, U.S. Circuit Court judge in New York. ”The mirrors are full of people tonight wondering who`s the fairest of them all,” said Merton Bernstein, a professor at the Washington University School of Law in St. Louis.
But the president and his advisers now have to find a strategy to reconcile ”the demands of the Republican Right for a strict constructionist against the demands of the civil-rights community for somebody who`s not going to turn back the clock,” according to Hugh Heclo, a George Mason University professor of government and an expert on the modern presidency.
Brennan, one of the court`s most forthright liberals, was appointed by President Dwight Eisenhower in 1956 and has been a powerful voice on the court for nearly 34 years. Eisenhower later lamented appointing Brennan and once said that his other selection, Chief Justice Earl Warren, was the worst mistake of his life.
Nonetheless, Brennan proceeded to become the most senior as well as the oldest of the nine justices. Only one other justice in the court`s history, William O. Douglas, wrote more opinions. Only three served at a more advanced age: Oliver Wendell Holmes, 91, Roger Taney, 87, and Hugo Black, 85.
Brennan`s decisions in civil rights cases enforced strict school desegregation plans, upheld affirmative-action programs designed to help minorities overcome past discrimination and sought to secure constitutional equality for women.
Eleanor Smeal, president of the Feminist Majority, an activist group that favors abortion rights, said Brennan`s resignation was a call to arms for American women. ”A Trojan Horse nominee-who has no public opinion on abortion-will have no chance,” Smeal said in a statement.
Brennan`s leaving breaks a voting bloc that as recently as last month continued to produce important affirmative-action and civil-rights decisions by 5-4 majorities. In these votes he, Justices Thurgood Marshall, John Paul Stevens, Harry Blackmun and Byron White would combine against the conservative Chief Justice William Rehnquist and Justices Sandra Day O`Connor, Antonin Scalia and Anthony Kennedy.
Along with fellow liberal Justice Marshall, Brennan maintained the Constitution forbids the death penalty as cruel and unusual punishment.
In a one-paragraph letter to President Bush, the justice said: ”The strenuous demands of court work and its related duties required or expected of a justice appear at this time to be incompatible with my advancing age and medical condition. I therefore retire effective immediately as the associate justice of the Supreme Court of the United States.”
Brennan did not spell out the medical condition that prompted him to step down. But a Supreme Court spokesman said he fell recently while catching a flight at the Newark, N.J., airport. He consulted a doctor, who diagnosed a small stroke.
The son of an Irish Catholic immigrant and labor leader, Brennan took his seat on the court on Oct. 16, 1956. He had served on the New Jersey Supreme Court earning the reputation of a reformer of the state courts and an outspoken critic of the tactics used by Sen. Joseph McCarthy (R-Wis.) to rid the government of communists and communist sympathizers.
At the court in Washington, he joined his former law professor at the Harvard Law School, Felix Frankfurter, who is reported to have remarked, ”I taught my students to think for themselves, but sometimes I think that Bill Brennan carries it too far.”
One of the Senate`s most fervent liberals, Sen. Edward M. Kennedy (D-Mass.), a member of the Senate Judiciary Committee that will hold hearings on Bush`s nominee, hailed Brennan`s career, saying that he had ”earned an extraordinary place in American history and American constitutional law” and that he ranks ”with Marshall, Holmes and Brandeis as the greatest justices the country has ever had.”
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Sen. Paul Simon (D-Ill.), also a member of the Judiciary Committee, speculated that Bush would turn in another direction. ”Bush`s long suit is not courage, and he will not want to alienate the right wing with this one.” But Simon also encouraged Bush to nominate a replacement quickly so that background checks could be made by the FBI and confirmation hearings could begin soon after the Senate returns from it summer recess.