High Court's Slide to the Right

Set for argument later this month, Tennessee death-penalty case called `bellwether'

SOME approaching Supreme Court decisions are likely to provide bellwether signs for how much further the court's rightward shift during the past three years will go. The character of President Bush's legacy in the federal courts has not yet become clear.

His only appointment to the Supreme Court, Justice David Souter, has not yet made an identifiable mark on the court. Major court decisions in recent months have jogged both to right and left on matters from the rights of the accused to workplace discrimination.

But the overall drift of the court, to most court-watchers, is at the least to consolidate the sharp rightward shift that began at the end of the Reagan presidency.

Deep conservative roots

Perhaps the most-watched Supreme Court decision this session in the criminal law field is a Tennessee capital-punishment case in which the court will rule on whether to admit emotional evidence of the impact on the surviving victims of the crime.

``This is a bellwether for us whether the court is going to take another lurch in the conservative direction,'' says Vivian Berger, general counsel to the American Civil Liberties Union and vice dean at Columbia Law School. The deep conservative roots - nurtured through the Republican hold on the presidency - is apparent throughout the federal courts.

By the end of Mr. Bush's first term, says Sheldon Goldman, a political scientist at the University of Massachusetts who tracks judicial appointments, two-thirds of those on the federal bench will be Reagan or Bush appointees. At least 20 percent will be Bush appointees, and only about 25 percent will be Democrats. ``So Democrats, and particularly liberal Democrats, are becoming an endangered species'' in the courts, says Professor Goldman.

The Bush nominations to judgeships are considered very similar to Reagan's. But the Bush administration has managed to appoint judges with little of the political controversy of some Reagan appointments.

The first judicial appointment that Bush stands a significant chance of losing in a Senate confirmation vote is that of Kenneth L. Ryskamp, a federal trial judge in Miami appointed by Bush to the 11th Circuit Court of Appeals.

The Senate Judiciary Committee will probably vote on Judge Ryskamp's confirmation next Thursday. Many of the committee's Democratic members are concerned about the judge's attitudes on civil rights, such as his membership in a country club that has no black members and allegedly discriminates against Jews. If the committee recommends confirmation, it will go to the full Senate for a vote.

Contrary to the Reagan style, Bush has not publicly lobbied for Ryskamp and made his confirmation a partisan, symbolic issue.

``That doesn't mean the Bush administration is slinking into a corner,'' says Goldman. Bush currently has about 120 judicial vacancies to fill. ``They are moving with all deliberate speed because they realize what a legacy it's going to be.''

The shift on the Supreme Court that occurred most dramatically and across a broad front in 1988 and 1989 was basically a one toward deferring to government power and away from expansive individual rights and protections.

`Government wins'

The central theme since then, says University of Southern California law professor Erwin Chemerinsky, is ``The government wins.''

The court surprised many in December when it gave an expansive reading of a defendant's ``Miranda'' rights in providing evidence to police.

But last week, the court broke further conservative ground in Fulminante vs. Arizona, in ruling that a coerced or induced confession does not necessarily require an automatic reversal of a conviction.

A more significant decision is expected soon in Bostick vs. Florida. Police stopped a Greyhound bus in Fort Lauderdale, Fla., and went down the aisle asking to search bags. They found drugs in the defendant's duffel bag. The issue is whether the police, who had no reason to suspect any individual on the bus, conducted their search in a free encounter the defendant could have reasonably refused.

``It's a very intimidating procedure,'' says Yale Kamisar, a criminal law specialist at the University of Michigan. ``Twenty years ago, nobody would have tried that case.''

The ACLU is more concerned about the practical impact of the victim-impact case the court will hear later this month.

``Where we are in great danger is in the Payne case,'' says Professor Berger. In Payne vs. Tennessee, a young black man murdered a white mother and her toddler, severely injuring a second child. The trial court admitted emotional testimony by the surviving child and its grandmother about the pain of losing the mother.

The court ruled against allowing victim-impact testimony in capital cases in 1987. But this time, the case ``stands in a very unfavorable posture for us,'' says Berger. If the court allows such testimony, it will almost certainly become routine, she says, especially to heighten the emotional charge in black-on-white crimes.

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