Supreme Court Appointments: Judge Bork and the Politicization of Senate Confirmations

By Norman Vieira; Leonard Gross | Go to book overview
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I
EXIT JUSTICE POWELL

Powell's clerks were surprised, but not shocked.1 For several years, Justice Powell had been rumored to be in ill health. He had undergone major surgery three times since coming to the Court, including most significantly, surgery for prostate cancer in 1985. Moreover, he had told President Nixon at the time of his appointment that he did not expect to stay on the Court for more than ten years. In fact, Powell had thought seriously about leaving the Court in 1982, but his children persuaded him to stay.2 Now, as he approached his eightieth birthday, it was time to reconsider.

Powell called his clerks into his office as the Court was about to end its 1986 Term and, without fanfare, quietly announced that he had decided to retire and assume senior status. None of his clerks believed that Powell was under any outside pressure to leave or that, if there had been any pressure, it would have made any difference to him. His clerks thought Powell "left with a great deal of regret. He was still mentally and intellectually capable. He loved his job so much, and he wanted to go out while he was on top. Yet, he thought it was in the best interest of the Court for him to retire."3 In his farewell press conference, Powell expressed concern that he might handicap the Court if he experienced a recurrence of serious health problems.4

In the past, some justices had tried to time their resignations so as to maximize the chance that a successor would be appointed who would carry forward their views. Chief Justice Earl Warren tendered his resignation to President Johnson in June 1968 "effective at your [ Johnson's] pleasure"5 in an apparent attempt to give Johnson, a fellow liberal, the opportunity of appointing his successor.6 Warren was unsuccessful be

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