Reagan can tip Supreme Court scale to right

Only months into his term, President Reagan has his first opportunity to put a conservative stamp on the US Supreme Court. Already his election tidal wave has moved Capitol Hill and the White House sharply to the right. With the just-announced high court vacancy, that wave now moves to the judiciary.

The announcement June 18 that Associate Justice Potter Stewart will retire within weeks set off immediate speculation about whether President Reagan will use a political "litmus test" for picking his successor and whether he will pick a woman.

"We will not seek only candidates" who agree with the Presidential spokesman Larry Speakes. However, he made it clear that the new member of the Supreme Court will not be a judicial activist. The appointee must agree that "the role of the court is to interpret the law, not enact new law by judicial fiat."

The 1980 Republican platform that Mr. Reagan ran on promised to appoint justices who hold right-to-life viewpoints, and he has been widely expected to seek justices who oppose abortion.

As a candidate, Reagan also promised that "one of the first Supreme Court vacancies in my administration will be filled by the most qualified woman I can possibly find."

The White House is giving no guarantee that this first pick will be a woman, however, and Mr. Speakes stressed to reporters that Reagan had said "onem of the first . . . ." He shied away from saying that women would be given "special" consideration.

An informal search began last month when Justice Stewart notified the President of his plans, but the White House on June 18 declined to outline the method to be used to picking a new justice. Top presidential aides and the so- called "kitchen cabinet," a group of California businessmen who are close Reagan friends, will play a role.

The impact of Justice Stewart's departure is uncertain because he has been known as one of three "swing votes" on the court, sometimes siding with conservatives, sometimes with the liberals. In recent years, he has voted slightly more often with liberals, as the court has moved slowly to the right.

He supposed the controversial Miranda decision in 1966, which required police to warn suspects of their rights. But he sided with the majority in the landmark 1973 ruling establishing abortion rights.

Mr. Stewart, who was appointed by President Eisenhower in 1958, was one of the youngest justices ever appointed. A former Cincinnati city councillor and federal appeals judge, he is the son of a Cincinnati mayor and the product of an Ivy League (Yale University) education.

Stewart gave no reason for his decision, saying only that "it is time to go." Reagan praised his "unfailing dedication to the court, to the highest standards of the legal profession, and to the fundamental principles and protections of our Constitution."

President Nixon once offered Stewart the post of chief justice, but he declined.

The White House has not indicated a role for any outside group, including the American Bar Association, in picking the new justice. The ABA has been highly critical of the Republican platform for bringing antiabortion politics into the judicial selection process.

Speakes declined to say whether a right-to-life attitude would be required of the nominee, but he said the President supports the Republican platform. The platform stated, in part, "We will work for the appointment of judges . . . who respect traditional family values and the sanctity of innocent human life."

One clue to Reagan's approach to naming judges can be found in his experience as governor of California. Although most of his appointments followed the Republican party line, he has been praised for making selections based on merit more that on politics.

His three state supreme court appointments were instructive. He appointed Donald R. Wright, whom he expected to be a staunch conservative, to be chief justice. Once on the court, however, Wright voted against capital punishment and sided with his liberal colleagues.

When a new opening occurred, Governor Reagan had learned his lesson. This time he picked a longtime associate, William P. Clark Jr., who was roundly attacked as unqualified since he had not even completed law school. However, Clark has been vindicated by building a record of thoughtful, right-of-center decisions on the bench.

For his third state high court appointee, Reagan named Frank K. Richardson, a respected jurist who had been described as both "open-minded" and conservative."