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Though Marshall's retirement gives President Bush another chance to shape the direction of the high court, there was little rejoicing at the White House. The departure last year of Justice William Brennan, who had been the leader of the court's liberal wing, tipped the balance and allowed Bush to install a conservative majority at last by appointing David Souter. Replacing Marshall will not have the same impact; it will mainly mean that what would have been 5-to-4 decisions are likely to be 6 to 3. But even so, the search for a successor to the court's only black justice could be a political minefield. "Choosing a brilliant and unexpected nominee like David Souter and getting him confirmed -- that was fun, for the President and for all of us," said a top Administration official. "But this one is going to be a bear."
The President has spent the spring crusading against the civil rights bill, which he claims would lead to the use of racial quotas. But his aides say he is considering applying a form of reverse discrimination to the nation's highest court. "There's a part of George Bush that's very stubborn and that bridles at the idea that he is expected to appoint a black man to replace a black man," says a senior White House official. But in private, the President's advisers are almost unanimous in predicting that he will not appoint another white male. "We can certainly get away, politically, with a good Hispanic nominee," says another Bush adviser. "We can probably get away with a woman. What would cost us would be picking another white guy."
In weighing his decision, Bush said on Friday, "I want to go for excellence. I want to keep in mind the representation of all Americans." He might do well to recognize that it was not Marshall's race alone that gave Marshall a unique perspective on issues before the court. More than any other Justice of his era, Marshall brought an experience of the real world, of growing up poor, of fighting for principle in the trenches. His views on the death penalty, for instance, were shaped by the lessons he learned defending people charged with murder. He is the only one to have put his own life at risk by trying volatile cases in the segregated South. "There was nothing bloodless about his decisions," says Professor A.E. Dick Howard of the University of Virginia Law School. "He identified with the little people in a way that few Justices do."
It is not only racial pressures that the President will be feeling. Just as loud are cries from the right to seize this chance to target abortion. Already this term the court had grazed the issue by upholding the Administration's ban on abortion counseling in federally funded clinics. But though Souter joined in that vote, his views on a total ban on abortion are unknown, and Sandra Day O'Connor has implied a reluctance to toss out Roe v. Wade altogether. Thus pressure is building on the President to nail down an antiabortion majority once and for all -- or, says a pro-life leader, "there'll be hell to pay."