Next in Line for the Nine

The second most powerful court in the country is the U.S. Court of Appeals for the District of Columbia. A testing ground for constitutional challenges to federal law, the D.C. Circuit is a potential farm club for the Supreme Court.

Robert Bork, Ronald Reagan's first appointment to the D.C. Circuit, is the favorite to fill the next opening on the Supreme Court during a Reagan presidency. As Solicitor General in the Nixon Administration, Bork came to public notice for firing Watergate Special Prosecutor Archibald Cox after Attorney General Elliot Richardson resigned rather than do the deed. Bork intended to resign after firing Cox but stayed on when Richardson told him, "If you quit, there will be no Justice Department."

In legal circles, Bork, 57, is well known for his preachments on judicial restraint. He believes that judges should not aggrandize their power by second-guessing other branches of Government. As Solicitor General he opposed court-ordered busing to integrate schools. As a Yale Law School professor, he often accused the federal Judiciary of reading individual rights into the Constitution that were neither explicit nor implied.

Last August, Bork wrote a court-of-appeals opinion upholding the discharge of a Navy petty officer for homosexual conduct. Nowhere in "the text, structure or history of the Constitution" is there any "right to privacy" that would protect homosexual conduct, he concluded. Some experts think that Bork would vote to reverse Roe vs. Wade, the Supreme Court decision that legalized abortion on the ground that a woman's constitutional right to privacy outweighs the rights of a fetus until it can live outside the womb.

Another Reagan appointee to the D.C. Circuit, Antonin Scalia, 48, would also be on the President's short list of prospective Supreme Court Justices. Like Bork, he is an articulate apostle of judicial restraint. For example, when the appeals court last year ordered the Food and Drug Administration to examine evidence that drugs used to execute prisoners by "lethal injection" can cause torturous death, Scalia dissented, calling the decision "a clear intrusion upon the powers that belong to Congress, the Executive Branch and to the states." A Roman Catholic, Scalia is personally opposed to abortion. Both Scalia, who taught at the University of Chicago, and Bork, who went there as a student, are influenced by the "Chicago School" view that the Government should not hamper the free market.

Yet another University of Chicago product who is given a good shot at the high court is Richard Posner, a professor at the law school whom Reagan put on the Federal Court of Appeals in Chicago. Posner, 45, a believer in free-market forces, would eliminate the exclusionary rule on the ground that barring evidence in criminal trials is economically inefficient, regardless of whether it was obtained illegally.

Bork, Scalia and Posner are all aggressive conservatives who would challenge the liberal assumptions of many Supreme Court rulings. But they are not knee-jerk ideologues. Bork, for instance, has made it clear that judges should respect precedent even if they disagree with it.

If the Reaganauts want a more doctrinaire Justice, they will probably look for someone less imbued with judicial traditions. A frequently mentioned possibility is William Clark, Reagan's former National Security Adviser and now his Secretary of the Interior. Clark, 52, had a similar career path in California: Governor Reagan made him chief of staff, then nominated him to the California Supreme Court. As a prospective U.S. Supreme Court Justice, however, Clark is likely to stir opposition from Congress and the organized bar. His legal credentials are suspect: he dropped out of law school, passed the bar exam only on his second try, and was so inexperienced as a California judge that he had to rely heavily on his staff for legal expertise.

Two other California friends are likely candidates for the short list: outgoing Attorney General William French Smith and the man nominated by Reagan to succeed him, White House Counsellor Edwin Meese. Smith, 67, practiced labor law for a large Los Angeles firm (he represented management) and has no experience on the bench. Meese, 53, a former professor at San Diego Law School, is best known in legal circles for his law-and-order views. He once called the American Civil Liberties Union "a criminals' lobby." A special prosecutor last month cleared Meese of any criminal wrongdoing in connection with giving federal appointments to friends who had lent him money. Even so, he would probably encounter confirmation problems if nominated for the court. White House aides believe that Reagan would pick an experienced jurist before choosing an old friend.

If Walter Mondale wins in November, many Supreme Court watchers expect him to nominate a woman. She could be D.C. Circuit Judge Ruth Bader Ginsburg, 51, a former Columbia law professor who successfully argued several sex-discrimination cases before the high court, or Patricia Wald, 56, another liberal on the D.C. Circuit. Mondale might also choose an old friend, D.C. Circuit Judge Abner Mikva, 58, a liberal activist and former Congressman.

One person would appear on either Reagan's or Mondale's list: Amalya Kearse, 47, a federal appeals judge who is both black and female ("a two-fer," says a Reaganaut). Kearse would surely be in contention if Thurgood Marshall, the only black Justice, stepped down. But Kearse has one drawback that could discourage political patrons: she is neither predictably liberal nor predictably conservative.