The Court's Pivot Man

By GEORGE J. CHURCH

"The key problem," Justice Lewis Powell once said, "is one of balance." He was referring to conflicts between the rights of criminal suspects and society's need for law-and-order. But he might have been describing his role on the Supreme Court. For more than 15 years Powell sought constantly to strike a balance between conflicting interests as well as between the court's liberal and conservative wings. He became the least predictable of the nine Justices and perhaps the court's central figure, casting the swing vote in one 5-to-4 decision after another. His resignation last week gave Ronald Reagan the chance to tilt the court more sharply to the right, perhaps for decades, by appointing a more sternly and consistently conservative Justice. Said Paul Gewirtz, professor of law at Yale: "This is not just another vacancy. This is the pivot point in the next generation of American constitutional law."

Just who might be Powell's successor was not settled at week's end. Chief Justice William Rehnquist did not phone White House Chief of Staff Howard Baker to inform him of Powell's decision until 9:35 Friday morning, less than an hour before Rehnquist announced the news from the bench on the last day of the court's current term. Reagan and a few top aides immediately began discussing names. The two leading candidates were Robert Bork, a federal appeals-court judge in the District of Columbia, and Republican Senator Orrin Hatch of Utah. Reagan expressed a desire to get the advice of Attorney General $ Edwin Meese, who happened to be traveling, and further discussion was put off until Monday.

The White House decision may be preceded by a short, sharp battle between Administration right-wingers led by Meese and moderates headed by Baker. The Meese faction wants to cement conservative control of the Supreme Court; Baker's group wants to choose a nonconfrontational conservative who would arouse less than die-hard opposition from liberals in the Democratic- controlled Senate. "Even if we make a quality selection, it could well be a tough go," says a Baker aide. Liberal Senators, however, are in a weaker position to stall Reagan's choice than they would have been if Powell had delayed his resignation: the 19 months until Reagan's successor is sworn in would be a long time for the court to operate with only eight Justices.

The timing of Powell's resignation appeared to be dictated primarily by the approach of his 80th birthday on Sept. 19. The slender, bespectacled Virginian, who underwent surgery for prostate cancer in 1985, has continued his renowned six-day workweeks, with an occasional half day on Sunday, but apparently was afraid he would not be able to keep up the pace much longer. Said he, simply: "For me, age 80 suggests retirement."

Soft-spoken and unfailingly courteous, Powell originally doubted whether he would like being on the Supreme Court. When Richard Nixon nominated him in 1971, he had been a successful Richmond trial lawyer for 34 years and past president of both the American Bar Association and the American College of Trial Lawyers. He said at the time, "I would rather play than umpire." But he came to enjoy his work. Asked at his farewell press conference to name his "best moment" on the court, Powell declined but volunteered, "Today is one of the worst."

Fate increasingly cast him in the role of umpire within the court, and never more than in the past few years. Of the 41 cases decided by a 5-to-4 vote in the term just concluded, Powell was in the majority no fewer than 33 times. Over the years his votes were steadily pro-business, and he tended to side with the conservatives in criminal-law cases. He upheld the right of states to impose the death penalty, but otherwise followed no identifiable ideological line. At his farewell press conference, he declined even to describe himself as a moderate. Said Powell: "I don't characterize myself in any way . . . I decide each case on the basis of the facts and the law of that case."

Among the areas of the law where his replacement by a staunch conservative might make the greatest difference:

Abortion. The 7-to-2 majority upholding a woman's right to abortion in the original Roe v. Wade case of 1973 shrank to only 5-to-4 in a June 1986 ruling reaffirming that decision, with Powell in the majority both times. The deciding vote in future cases might be cast by Sandra Day O'Connor, who has indicated a willingness to countenance restrictions on abortion but not necessarily to overturn Roe entirely. Proponents of abortion rights fear the worst. Said Kate Michelman, of the National Abortion Rights Action League: "We believe the right to choose a safe and legal abortion has never been in greater jeopardy."

Affirmative Action. Powell's 1978 opinion in the 5-to-4 Bakke decision on university admissions, at the time not fully backed by any other Justice, influenced what came to be the court's general approach in employment as well as education: race-conscious goals are permissible so long as they do not become permanent, rigid quota systems. In the term just concluded, Powell cast the swing vote in upholding a promotion plan for black Alabama state troopers. But the Reagan Administration has been campaigning to abolish numerical hiring and promotion goals for minorities and women, and Powell could be replaced by a Justice who agrees with the Administration position.

Religion. Powell took a highly eclectic approach: he voted to allow Pawtucket, R.I., to place a creche in a municipal Christmas display, but also to strike down an Alabama law authorizing a moment of silence in public schools. Justices Rehnquist, Byron White and Antonin Scalia want to go further than Powell ever would in approving state practices that foster religion, and O'Connor would like to rewrite the court's standard test for deciding when such practices are constitutional. Powell's successor might make a majority.

By week's end White House aides had disclosed the names of nine potential successors, but several appeared to face difficulties. Hatch and Senator Howell Heflin of Alabama, a conservative Democrat, are likely to run afoul of a provision in Article I of the Constitution that prevents any member of Congress from being appointed to a federal position that was voted a salary increase during that term of office. This may keep the Senators from taking court seats, since Congress approved a pay increase for Supreme Court Justices last February.

Five judges of federal circuit courts of appeals, all conservatives, appeared to have good prospects:

Bork, 60, District of Columbia Circuit, Washington. A respected legal scholar acceptable to both the Meese and Baker factions, he is the early favorite. Bork is best known for his historic role as Acting Attorney General in the Nixon Administration, when he fired Watergate Special Prosecutor Archibald Cox.

Patrick Higginbotham, 48, Fifth Circuit, Dallas, an expert on antitrust law. Appointed to the bench in 1975, the personable Higginbotham is well respected by both conservatives and liberals. He has been active in Dallas' Legal Services Corp., which provides assistance to the disadvantaged.

Anthony Kennedy, 50, Ninth Circuit, Sacramento, a federal judge since 1975. His most notable opinion was in a unanimous 1985 appeals-court decision striking down a Washington State law mandating raises for women holding jobs considered to be of "comparable worth" to higher-paying positions usually held by men.

J. Clifford Wallace, 58, Ninth Circuit, San Diego. Named to the bench by President Nixon in 1970, Wallace is a Mormon and longtime friend of Meese. Wallace was a top contender for the Supreme Court vacancy filled by O'Connor in 1981.

Ralph Winter, 51, Second Circuit, New Haven, Conn. Though a conservative, he once clerked for Thurgood Marshall, one of the most liberal Justices of the Supreme Court. The White House seriously considered him last year for the appointment that went to Scalia.

Anyone Reagan selects could begin playing Powell's swing role immediately -- and could still be shaping decisions in the early years of the 21st century. The choice could easily touch off the last great political fight of the Reagan presidency. It may also constitute the Administration's most lasting legacy.

With reporting by David Beckwith and Anne Constable/Washington