Analysis by William Fisher
With the resignation of Supreme Court Justice John Paul Stevens, U.S. President Barack Obama faces an opportunity that may become a migraine – or vice versa.
All presidents welcomes vacancies on the high court; each one gives them another chance to leave their mark on the American political landscape. The resignation this Summer of Justice Stevens, who is approaching 90 years of age, after 34 years on the court, is no different.
With partisan acrimony at the most intense pitch in recent memory, President Obama faces a dilemma. Does he choose someone uncontroversial – more conservative -- who is likely to be confirmed by the Senate with relatively little opposition, or does he nominate someone in the Stevens mold?
Stevens, though a Republican selected by a Republican president, Gerald R. Ford, has since his appointment in 1975, gradually become the voice of the “progressive wing” of the court as the full court has moved relentlessly toward the right.
Today, there are four justices who represent a reliably predictable conservative vote – Chief Justice John Roberts and Associate Justices Samuel Alito, Antonin Scalia, and Clarence Thomas. Justice Anthony Kennedy, considered the “swing vote,” often joins the conservatives to give them a majority of five.
Many of Stevens’ decisions have angered those on the political right, including decisions that limit executive branch power and expand legal rights for Guantanamo detainees.
Some of his dissents may in time also prove to be as important as the Court’s majority opinions; for example, his recent impassioned opposition to the majority in the Citizens United v. Federal Election Commission case which ruled that corporations have the same First Amendment rights as humans and therefore can spend unlimited amounts of money in political campaigns for or against candidates.
Some observers of the Washington scene believe Obama will opt for a “safer” nominee to avoid alienating Senate Republicans, whose support he is still seeking for passage of his legislative agenda. Others contend that Obama, now emboldened politically by passage of his historic health care legislation and a new nuclear weapons accord with the Russians, will challenge conservative Republicans to a knock-down drag-out fight in the Senate.
Conventional wisdom suggests that those reportedly on the shortlist of nominees include several who were considered before President Obama named his first Supreme Court Justice, Judge Sonia Sotomayor. They include the current Solicitor General, Elena Kagan, formerly dean of the Harvard law school; federal judges Diane Wood and Merrick Garland; and Homeland Security Secretary Janet Napolitano.
Judge Wood is arguably the most liberal of these possible nominees. Some disqualify Garland because they believe Obama wants to choose another woman – there are currently two on the court. Kagan is generally well regarded by conservatives and has many supporters on the right, although she favored a ban on military recruitment on the Harvard campus. As Solicitor General, she plays a major role in choosing court cases the government will bring or defend. In a large number of these, her choices have channeled those of the George W. Bush Administration.
Napolitano, former governor of a border state, Arizona, has been tough on illegal immigration, a position that has strengthened her hand among conservatives. The two appeals court judges both have long judicial paper trails, generally thought to be an impediment to speedy confirmation. Judge Wood in particular has written a number of opinions in abortion cases that conservatives would find objectionable.
While other names – including Secretary of State Hillary Clinton -- have also been mentioned, the truth is that only Obama and his most senior advisors know who is being seriously considered.
Meanwhile, legal experts have begun to assess the legacy of Justice Stevens.
Prof. Peter Shane of the Ohio State University law school told IPS, “The phrase you will see a million times in upcoming summaries of Justice Stevens' career is independent-minded. He is truly a calls-it-as-he-sees-it kind of judge, devoted as much as any judge can be to the nontendentious, dispassionate, principled development of the law.”
He continued, “The fact that he is now widely regarded as so liberal is chiefly a reflection of his fidelity to the primary trajectory of 20th Century constitutional development, which was, over time, more and more protective of individual rights, social inclusion, and the authority of the federal government to address all national problems.”
In recent years, Shane says, Stevens “has become an anguished truth-teller, pointing out both in Citizens United and in Parents Involved (the Seattle voluntary school desegregation case) the untethered radicalism of Roberts-Alito-Scalia-Thomas jurisprudence. What the Court needs now, in my judgment, is a justice with both the intellectual heft and personal disposition to weigh in effectively against the tide of right-wing jurisprudence. Justices Marshall and Brennan spring most obviously to mind as role models.”
Col. Morris D. Davis (US Air Force Ret.), former chief prosecutor of the Military Commission trials at Guantanamo Bay, Cuba, told IPS, “My concern as the Obama administration weighs a replacement is what the Court will lose when Justice Stevens departs. He alone brings three perspectives to the bench that will likely be lost: he's the lone military veteran, the lone Protestant, and the lone non-Ivy leaguer.”
He explained: “I suppose I'm biased as I share those three characteristics with Justice Stevens and I believe those are important perspectives that should be reflected on the Court for it to have the benefits of a range of experiences to draw upon in making decisions that impact us all. A Court composed entirely of Catholics and Jews, all with Ivy League educations, and none with a day of military service does not come close to mirroring the diversity of the nation.”
And Prof. Francis Boyle of the University of Illinois law school appears to have lost confidence that Obama can nominate anyone who will stop the Court’s drift to the right. He told IPS, “So far University of Chicago Constitutional Law Teacher President Barack Obama has failed and refused to deconstruct and dismantle [the Bush Administration’s] totalitarian handiwork. To the contrary, the Obama administration has defended and justified in court almost every hideous atrocity that the Bush Jr. administration perpetrated on international law, human rights, civil rights, civil liberties, the U.S. Constitution, and the Bill of Rights.”