Marshall resigns from Supreme Court Court's last liberal, only black retires

THE BALTIMORE SUN

WASHINGTON -- Justice Thurgood Marshall, the only black ever to sit on the Supreme Court, retired yesterday after 24 years of stubborn and often eloquent liberalism on the nation's highest tribunal.

A hero to the nation's blacks before he ever joined the court, as a seldom-defeated civil rights lawyer from the founding of the revolution this century to achieve black equality, Justice Marshall solidified his place in history by breaking the court's 178-year-old "for whites only" barrier.

Although he had often said, more seriously than in jest, that he had a lifetime appointment and that he would "serve out my term," the justice told President Bush yesterday that his "advancing age and medical condition" forced his retirement now.

He will be 83 on Tuesday. He was born in Baltimore, the son of a schoolteacher and a country club steward.

In a brief letter sent to the White House yesterday 2 1/2 hours after the court had finished its current term with a flurry of decisions, Justice Marshall said, "The strenuous demands of the 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."

He gave no further explanation. He was to hold a press conference at the court this morning and was likely to go further then.

Justice Marshall said he would leave the court formally when a successor has been selected by the president and approved by the Senate. The White House is expected to make an effort to have a new justice ready to join the court when it starts a new term Oct. 7. A White House source indicated that announcement of Mr. Bush's choice could be "imminent."

Justice Marshall's retirement will remove from the court the last justice who voted consistently for liberal positions, and it follows by a year the retirement, also forced by age and illness, of the longtime leader of the court's liberal bloc, Justice William J. Brennan Jr. Mr. Brennan sat in the courtroom as the justices finished their work yesterday -- very likely aware that his close friend, Justice Marshall, was sitting for the last time.

The court is now dominated, in decision after decision, by conservative justices named to the court by Republican presidents. While conservative action groups yesterday began putting pressure on Mr. Bush to name another conservative, Democratic senators began suggesting that the president should consider philosophical "balance" in naming a new justice.

Although the court's conservatives have a majority of five (and sometimes six) justices, some activists are not so sure that five votes can always be counted on.

Sen. Jesse Helms, R-N.C., made clear he did not think the time had come for Mr. Bush to reach out for the philosophical "diversity" other senators were suggesting. He remarked: "Any one of the sitting five [conservatives] could hit a tree going home tonight."

Asked how many conservatives would be enough, he replied: "I think there should be nine conservatives. That's an even number."

With Justice Marshall's departure, only one justice named by a Democratic president will remain on the court: Byron R. White, 74, now the senior justice in service. Justice White was named by the President John F. Kennedy in 1962, Justice Marshall by President Lyndon B. Johnson in 1967.

In private, and even occasionally in public, Justice Marshall had seemed to make it clear he would never depart voluntarily when a Republican president could name a successor. A sharp-tongued, at times profane, at times jocular conversationalist, Justice Marshall made no secret of his aversion to Republican politicians. Last summer he was openly disdainful of Mr. Bush, saying he would vote against the president if he sought re-election.

His decision to retire now creates an instant opportunity for Mr. Bush -- whose record on civil rights as a candidate and as chief executive has drawn heavy fire from blacks and liberals -- to use this appointment to make an important symbolic gesture toward blacks.

A court left without a black, because of a different choice by Mr. Bush, almost certainly would draw strong criticism from within the civil rights community, if not from elsewhere.

Indeed, some of that pressure began coming from within the government: Arthur Fletcher, a Republican named by Mr. Bush as chairman of the U.S. Commission on Civil Rights, expressed hope that the president would appoint "another black attorney, male or female, with stature, experience and understanding of the law."

Mr. Fletcher, an occasional adviser to the president on civil rights issues, said in a telephone interview from Denver that he planned to suggest some names to Mr. Bush. "There are some qualified blacks in state supreme courts and in the federal judiciary," he said.

The individual emerging first in speculation is Clarence A. Thomas, a black judge placed by Mr. Bush on the prestigious U.S. Circuit Court of Appeals here last year. Mr. Thomas, 42, is former chairman of the U.S. Equal Employment Opportunity Commission. Like Mr. Bush, he is a firm opponent of racial quotas as a basis for job or other benefits.

As a conservative in his personal and judicial outlook, Mr. Thomas would be likely to gain favor among some of the president's closest advisers. That very quality, however, could arouse some opposition among Senate Democrats, some of whom had said bluntly that their votes for Mr. Thomas for a circuit judgeship did not commit them to vote for him if he were ever nominated for the Supreme Court.

Mr. Bush so far has named one justice, Justice David H. Souter. At the time he chose Mr. Souter, the president was said to have come close to choosing a white woman, U.S. Circuit Judge Edith H. Jones, 42, of Houston. Her name thus is likely to return to speculation.

Although the court now has a female justice, Sandra Day O'Connor, the president is expected to hear some advice that he could pick an other woman and, with that, blunt criticism if he did not choose a black.

The names of two other women also entered the speculation yesterday: U.S. Circuit Judge Amalya L. Kearse of New York City, who is black, and U.S. Trade Representative Carla A. Hills, who is white.

Justice Marshall, who has been ill from time to time in recent years but lately had appeared to be well, had given no hint of his impending retirement plan. A source close to the justice, asking not to be identified, said yesterday that there had been no indications of a medical problem lately.

Speculation around the courthouse about a possible retirement -- a phenomenon near the end of every court term -- had focused on Justice Harry A. Blackmun, 82 -- especially in view of Justice Marshall's oft-repeated statement that he would not leave the court voluntarily.

When liberals dominated the "Earl Warren court" and later held a still-strong position on the "Warren Burger court," Justice Marshall was a predictable member of that bloc. His most certain vote was a "no" on every death sentence that came before the court review -- a total opposition to capital punishment that only Justice Brennan shared.

In recent years, with conservatives emerging to dominance, Justice Marshall was the most frequent dissenter. In fact, on yesterday's closing day of the term, he cast dissenting votes in five of the six rulings.

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