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  •   Lewis Powell a Fine Sense of Balance

    By Edwin M. Yoder Jr.
    The Washington Post
    Monday, June 29, 1987; Page A13

    When his friends think of Lewis F. Powell Jr. and the Supreme Court labors he relinquished last week, the usual words fail -- clumsy labels such as "swing voter" and "centrist" with which laymen struggle to grasp the elusive character of the judicial process.

    Powell has been much too vivid and particular a judicial presence to fit such cliches -- just such an old-fashioned gentleman as you might encounter in an Ellen Glasgow story set in her and his Richmond: attached to a sense of noblesse oblige, marching always to his own drummer, but far from unworldly.

    Lewis Powell accepted his Supreme Court seat from Richard Nixon in 1972, in fulfillment of Nixon's pledge to name a "southern conservative" justice. But Powell's service has far outstripped whatever political aims might have lurked in Nixon's long-forgotten "Southern strategy."

    The new justice was not slow to show that he wore no one's collar, not even his own. In one of his first important decisions, he reversed himself. "Powell, J," as the labels say in court opinions, repudiated Powell, Lewis, distinguished trial lawyer and ABA president who in a noted speech had endorsed the implied presidential power to order warrantless wiretaps in "national security" matters.

    This was an early indication of his independence of and his distaste for result-oriented or political jurisprudence. My guess is that the political sympathies of Lewis Powell, private citizen, would still lie with an expansive view of presidential national-security powers. But for him the first rule of judging was to set aside personal predilection and vote the law and the facts.

    A decade or so ago, I had a lesson in the persuasive powers that made Powell so influential. In a column in the late Washington Star, I referred in passing to the supposed finding of the 1945 Strategic Bombing Survey that long-distance bombing had played an overrated role in defeating Hitler. The mail soon brought a long, courteous but firm note on the justice's private letterhead, enclosing a copy of the survey and inviting me to study it. I did, and he was right; I had been taken in by a myth.

    I was impressed that a justice cared enough to pause from his mule-killing work schedule to correct misimpressions about the Strategic Bombing Survey, and to do it with such winning courtesy and persuasiveness. But this is a heartfelt vestige of his wartime Air Corps service as a trusted intelligence officer for the Eighth Air Force, with access to Allied code interceptions so secret that most of the world learned about them only decades later.

    The qualities that made him a fine intelligence officer and a great trial lawyer also made him one of the two or three most influential Supreme Court figures of his time.

    Justices must strike a delicate balance between conflicting temptations. On one side there is the temptation to exercise what Justice Robert Jackson called a "roving commission" correcting errors and oversights. On the other, springing from the duty to write stable and coherent rules of law, there is the temptation to play philosopher-king. Powell, in term after term, managed to strike craftsmanlike balances, ignoring neither duty but indulging neither to excess.

    He takes a special pride, as he should, in one of his noted balancing acts -- his controlling opinion in the 1977 Bakke case. The court and country were acutely divided over this first great test of "affirmative action." Allan Bakke, a white male, claimed, accurately enough, that minority quotas set aside at a branch of the University of California medical school denied him equal protection of the law by admitting less qualified students in his place.

    But for Powell's judicious vote, the court would have been hopelessly split; Powell found an ingenious balance. He voted with the opponents of affirmative action to overturn the two-track admissions policy; but he voted with the friends of affirmative action against a rigid doctrine of "colorblindness." Colleges could consider race as one factor in choosing their student bodies. Here as in other cases, this "southern conservative" who had fought the Byrd school closings as chairman of the Richmond school board refused to turn his back on victims of racial discrimination.

    Lewis Powell was not a man whose measure could be taken by cliche's, but there is one noble cliche' to which his style of judging gave rare vitality: "A government of laws, not of men."

    © 1987 The Washington Post Company

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