Monday, April 5, 2010

Choosing a Justice

Supreme Court Justice John Paul Stevens is a bit of a throwback.

The 89–year–old jurist, who has been on the Supreme Court for 35 years, says he will retire either this year or next year. Whichever one he chooses, though, he insists he will leave during Barack Obama's term in office to give him the opportunity to maintain the court's ideological balance.

Isn't that a quaint notion?

Stevens was nominated by a Republican president, Gerald Ford, who may have expected a centrist (or even a conservative), but he has turned out to be a leader of the liberals on the high court.

I guess it's possible Ford — who was more of a moderate than most office–holding Republicans are today — knew he was nominating a liberal back in 1975 (although I have heard Stevens describe himself, in spite of his opinions, as a conservative centrist). The backlash of Watergate had given Democrats huge majorities in Congress following the 1974 midterms, and Ford may have felt it was important to appease Democratic lawmakers.

All I really know about Stevens' nomination is what I have read in the Bob Woodward–Scott Armstrong book on the Supreme Court, "The Brethren," which suggested that Ford's main concern was not ideology.
"Ford finally concluded the best choice would be a sitting judge, someone virtually unknown who had worked with distinction for years on the federal bench. ...

"A former law partner considered Stevens a lawyer's lawyer, and on the appeals court Stevens had been thought of as a judge's judge. He was noted both for thoroughness and for his sophisticated arguments.

"On the basis of a few moments of small talk, Ford had preferred Stevens. Stevens also seemed to have no partisan politics, no strict ideology. His anonymity would ensure a quick confirmation."

The Brethren

I have to assume that, as brilliant as Stevens is reported to be — he had the highest grade–point average in the history of Northwestern University Law School — he is hopelessly mired in the past.

Why do I say that? Because, based on his statements, Stevens believes that a presidential nominee for the Supreme Court is habitually rubber stamped by the Senate. I guess that is understandable, given the fact that he sailed through, winning Senate confirmation by a 98–0 vote — although he ought to know better. During his tenure, not all Supreme Court nominees have sailed through the way he did. Ronald Reagan nominated Robert Bork, who was rejected by the Senate, and two other nominees — Douglas Ginsburg (in 1987) and Harriet Miers (2005) — were withdrawn when it became clear that they lacked enough support to be confirmed.

In fact, even before Stevens was appointed, both Richard Nixon and Lyndon Johnson ran into problems with their Supreme Court nominees.

Prior to that, though, no Supreme Court nominee had been rejected or forced to withdraw in Stevens' adult life so it isn't hard to see how he may have formed the impression that a president's choice for the Supreme Court usually gets the green light.

But things weren't as polarized when Stevens was a young adult as they are today.

Many political observers who have been studying the political terrain are predicting that the folks in Congress who belong to Obama's party are facing an uphill climb this year. Some — but not all — are forecasting that one chamber or both will shift from a Democratic majority to a Republican majority — and it hasn't been necessary to be a political science major to see that Republicans have grown less inclined to support Obama's proposals as time has passed.

One can only imagine how obstinate they will become if they take control of the Senate.

Of course, things can change between now and November. Unemployment may drop dramatically (although the administration is warning jobless Americans not to expect anything like that because last week's jobs report, which indicated the most significant gains in jobs in three years were posted in March, is likely to lure many discouraged job seekers back into the job market), and other things that could give Democrats a boost could happen.

And a Supreme Court nomination does not have to be confirmed by the House, only by the Senate, so, for the purpose of replacing Stevens (or any other justice who retires or dies), retaining control of the Senate is what matters. But, if those predictions prove to be accurate, Democrats may lose control of the Senate — or retain it by the slimmest of margins — when the voters go to the polls in November.

If that happens, Obama may not feel that he has the luxury of nominating a liberal if he must fill a vacancy next year. He may opt for a centrist, believing that person would have a better chance of avoiding a contentious battle and being confirmed.

Now, personally, I wouldn't have a problem with a centrist. I've never felt that ideological inflexibility had a place on the Supreme Court, whether it was a rigidity of the right or the left. But selecting Stevens' successor — or anyone else's — might be a much different exercise for Obama if he must wait until 2011.

There is a lot of uncertainty. The ominous predictions for Democrats may not come to pass. Or they might.

Anyway, my suggestion to Justice Stevens would be this: If he really wants Obama to choose his successor, he should announce his retirement soon — perhaps in a couple of weeks, when he turns 90 — while the Democrats hold the majority in the Senate.

While Democrats hold 59 seats in the Senate, Obama would be more likely to choose someone who would be to Stevens' liking.

If Stevens really wants to influence the selection, it's too dicey to wait until next year.

By then, the influence may belong to someone else.

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