The Law: Douglas Finally Leaves the Bench

It was Justice Harry Blackmun’s 67th birthday, and all his colleagues on the U.S. Supreme Court had gathered in their private dining room to raise a glass of wine and sing Happy Birthday. Then, when the song died down, Chief Justice Warren Burger called for attention. Solemnly he announced that William Orville Douglas had written a note to President Ford saying he was retiring that day, after nearly 37 years on the court—the longest term served by any Justice in history. When the suddenly subdued lunch eventually ended, Burger and the others each stepped up to the crippled senior Justice to shake hands and whisper a few private words of encouragement and farewell.

At 77, Bill Douglas had not given up easily. A toughened survivor of polio and a near drowning in childhood, plus an almost fatal riding accident and a weakened heart while on the court, he had been partly paralyzed by a stroke last New Year’s Eve and was confined to a wheelchair. The lifelong liberal had hung on stubbornly. As Douglas told a friend only a few weeks ago: “I won’t resign while there’s a breath in my body —until we get a Democratic President.”

Nerve Pain. Douglas’ fellow Justices were aware that he had been unable to serve effectively for months. Yet Douglas, reports TIME Correspondent David Beck with, began to be convinced of that fact only late last month. Shortly after midnight on Oct. 27, Cathy Douglas touched the forehead of her sleeping husband and found it alarmingly hot with fever. Douglas was sped by ambulance to Walter Reed Army Medical Center, where doctors discovered that he had a urinary-tract infection. It was arrested, but physicians were shocked by the deterioration in Douglas’ condition since he left the hospital last spring after a long convalescence from his stroke. An unusual nerve pain in the paralyzed areas on his left side had taken a severe toll. The Walter Reed doctors gave Douglas a blunt prognosis: You are not going to improve; you will always be paralyzed, unable to walk, in nearly constant pain; you will gradually deteriorate until you die.

During his long ordeal, Douglas, who has few intimates, confided only in his wife, former Presidential Adviser Clark Clifford and former Supreme Court Justice Abe Fortas, who wrote the earlier, misleadingly optimistic press releases on Douglas’ health. The four decided that Douglas should get a second opinion from Rehabilitation Specialist Dr. Howard Rusk, who had treated him earlier in New York City. Battling all the way, the old man was determined to miss as little court business as possible, though his appearances on the bench for oral arguments were constantly interrupted by spasms of pain. Two weeks ago, on a day when no arguments or conferences were scheduled, he and his wife flew to New York City. Rusk confirmed the Walter Reed prognosis —with one significant addition. If Douglas should choose to retire and rest, said Rusk, he might well improve and be able to lead a useful life.

Last Decision. Douglas nonetheless rushed back to Washington to attend the Friday court conference. The pain soon got to him again, and he had to be wheeled back to his chambers for an application of hot-water packs. On Monday of last week, he tried again as the Justices heard 4½ hours of arguments on one of their most important cases this fall—a challenge to the Federal Election Campaign Act of 1974. Douglas managed to stay less than two hours. That night he told his wife that he would resign. “It was his decision and his alone,” Mrs. Douglas reported. His colleagues on the court had never raised the issue. But he knew that they had determined to delay deciding any case in which his vote would be the tiebreaker. Once the court’s most prolific opinion writer, he also knew, as he said in his letter to the President, that he was now “unable to shoulder my full share of the burden.”

The President, though he had led an impeachment drive against Douglas only five years ago, praised “a lifetime of dedicated public service matched by few Americans.” Then, within a day, he sent a list of possible nominees for Douglas’ seat to members of the American Bar Association Committee on the Federal Judiciary, along with a request for their advisory reaction. By one report Michigan Republican Senator Robert Griffin, 52, had an early edge. But there are other considerations. Betty Ford is among those who think it high time there was a woman on the court. And the so-called Jewish seat has been empty since Fortas’ 1969 departure. Ford might look to his Cabinet, which includes Carla A. Hills, 41, Secretary of Housing and Urban Development, and Attorney General Edward Levi, 64. Among other possibilities in the wide-open guessing game: Solicitor General Robert Bork, 48; California Republican Congressman Charles Wiggins, 47, and at least nine federal-appeals-court judges.

Douglas professed no favorite. “That’s none of my business,” he told reporters the day after his retirement. But he is obviously concerned. Douglas’ departure leaves only William Brennan and Thurgood Marshall from the activist Warren Court majority. The four Nixon nominees have not proved to be as unified as many observers had anticipated; in fact, they have done little to reverse the work of the Warren Court except in the area of criminal law. But whoever he—or she—is, Ford’s nominee is almost certain to tip the balance of the court even further away from the postwar liberalism that Douglas (and the late Hugo Black) came to symbolize. For his part, Douglas aims to continue to speak out, in books if not from the bench. He has already completed the first draft of his memoirs of his years on the court, and is now editing and updating them.