John Paul Stevens: Big Shoes to Fill

Let me begin by thanking Justice Stevens for his many years of service to the American people.

When he was appointed by Gerald Ford, a Republican President, he was a moderate conservative.  Over the years, the Court has drifted further and further to the right, so what was a moderate conservative stance then has become very liberal by today’s standards, especially in comparison the extreme, activist ideologues on the Court: Scalia, Thomas, Alito Scalito, and Roberts.  Stevens has big shoes to fill.  Can Obama fill them?

The announcement by Justice John Paul Stevens on Friday that he would retire at the end of this term gives President Obama the rare opportunity to make back-to-back appointments to the Supreme Court during the first two years of his presidency.

But it also presents Mr. Obama with a complex political challenge: getting a nominee confirmed in the thick of a midterm election season, when Republicans, fueled by the intensity of their conservative base, are angling to knock him down, and Democrats, despite having lost their 60-vote supermajority in the Senate, are eager to flex their muscles after passing a landmark health care bill.

Justice Stevens’s announcement, delivered to the White House on Friday morning in a one-paragraph letter that began “My dear Mr. President,” set off an immediate scramble among the parties and a raft of advocacy groups that have been assembling dossiers on potential successors.

The three leading candidates — Mr. Obama is considering about 10 names all told, the White House says — present the president with a spectrum of ideological reputations, government backgrounds and life experiences. His choice will shape the battle to win Senate confirmation of his nominee.

In effect, the president must choose to be bold or play it safe.

Merrick B. Garland, 58, an appeals court judge here, is well liked by elite legal advocates and is widely considered the safest choice if Mr. Obama wants to avoid a confrontation with the minority party. A former federal prosecutor who worked on the Oklahoma City bombings, he is well-known in Washington’s legal-political community, where some view him as a kind of Democratic version of Chief Justice John G. Roberts Jr.

Elena Kagan, 49, is solicitor general but has never been a judge and does not have a lengthy trail of scholarly writings, so her views are less well documented. But as the dean of Harvard Law School, she earned respect across ideological lines by bringing in several high-profile conservative professors, and she is a favorite among some in the extended Obama circle, who see her as smart and capable. Her relative youth means she could shape the court for decades to come.

Diane P. Wood, 59, a federal appeals court judge in Mr. Obama’s home city, Chicago, is seen as the most liberal of the three. She has been a progressive voice on a court that is home to several heavyweight conservative intellectuals. As a divorced mother of three, she brings the kind of real-life experience that Mr. Obama considers important. But her strong support for abortion rights would provoke a confrontation with conservatives. On Friday, the anti-abortion group Americans United for Life warned that a Wood nomination “would return the abortion wars to the Supreme Court.”

In making his selection, Mr. Obama confronts a vastly altered political landscape from the one he faced just 11 months ago, when he nominated Sonia Sotomayor to fill the seat left vacant by the retirement of Justice David H. Souter.

With the election of Senator Scott Brown, Republican of Massachusetts, Democrats can no longer hold off a Republican filibuster. And while Democrats are emboldened by the health care vote, the passage of the legislation — which is already facing legal challenges from Republicans who say it is unconstitutional — has left the Senate more polarized than ever and created a climate in which the courts could easily become an election issue.

For the court, Justice Stevens’s departure will be the end of an era. He is the longest-serving justice by more than a decade, and he is the last remaining justice to have served in World War II. (He joined the Navy, where he served as a cryptographer, the day before Pearl Harbor was attacked.) His leaving will not, however, change the composition of the court; although he was appointed in 1975 by President Gerald R. Ford, a Republican, he has become one of its most reliably liberal members during his nearly 35-year tenure, as the court drifted ever rightward.

Still, for Mr. Obama, who taught constitutional law at the University of Chicago (where he was a colleague of Judge Wood), the vacancy is an unmistakable chance to put his stamp on the direction the court takes for the next several decades. Mr. Obama is already engaged in an unusual public confrontation with the court over its recent decision in the Citizens United case, which lifted strict limits on corporate spending in elections. On Friday, during a brief appearance in the Rose Garden, he made clear that the case was very much on his mind.

He vowed to “move quickly” in announcing a nominee. Senior advisers said they expected a decision within the next several weeks. The president said he would look for a candidate who possessed what he described as qualities similar to that of Justice Stevens: “an independent mind, a record of excellence and integrity, a fierce dedication to the rule of law and a keen understanding of how the law affects the daily lives of the American people.”… [emphasis added]

Inserted from <NY Times>

I consider the first two choices unacceptable.  Garland appears moderate-right, and Kagan appears moderate.  Either of them might be acceptable as a replacement for one of the right wing extremists, but not for Stevens.  Just to preserve the present imbalance we need a progressive capable of assuming Steven’s leadership role.

Wood might fill the bill.  I’ll need to investigate her background further.

Keith Olbermann and Jonathan Turley discuss Steven’s impact and potential nominees.

 

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Unless Obama appoints someone unacceptable to progressives, a GOP Filibuster is almost certain.  Their objection is likely to focus on health care reform.

Sen. Jeff Sessions, the ranking member of the Judiciary Committee tasked with hearings for President Obama’s Supreme Court nominee, today offered a strong hint about the direction Republicans may take toward the president’s choice.

Sessions (R-AL) used his statement to criticize Obama’s "empathy" standard for selecting Sonia Sotomayor last year for the high court.

But one sentence especially stood out: "There is much at stake, as the court’s interpretation of the Constitution in the coming years could significantly affect the implementation of domestic polices approved by the president and Congress over the past year."… [emphasis added]

Inserted from <TPM>

Rachel Maddow offered two clips worth adding.  In the first she analyzes the historical background.

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She was certainly correct about the fundraising.  I’ve received a dozen emails already.

In the second, she and Dahlia Lithwick discuss the balance of the court.

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Once again, unless we get a strong progressive Justice, the imbalance on the court will only be worse.

If I had the choice, who would I pick?  I’m not sure, yet.  However, a seemingly unrelated news story may be significant.

President Barack Obama’s nominee to head the Justice Department’s Office of Legal Counsel has withdrawn her bid for confirmation, after several Republicans objected to her criticism of the Bush administration’s terrorist interrogation policies.

Dawn Johnsen’s withdrawal – a setback for the Obama administration – was announced late Friday by the White House on a day the capital’s legal and political elites were absorbed in the news that Justice John Paul Stevens would retire from the Supreme Court.

The Senate Judiciary Committee had recommended Johnsen’s confirmation on party-line votes. But several Republicans objected to her sharp criticisms of terrorist interrogation policies under President George W. Bush, and the full Senate never voted on her nomination.

The decision about who should lead the little-known office became a political flashpoint because of the controversies surrounding Bush-era interrogations of terror suspects.

During the Bush administration, lawyers at the OLC wrote memos approving interrogation techniques that human rights advocates call torture. Those methods included waterboarding, or simulated drowning.

Lawyers who worked on those legal opinions were investigated for years but ultimately the Justice Department decided their actions were the result of poor judgement, not professional misconduct.

In announcing Johnsen’s withdrawal, both she and the White House blamed what they called politically motivated opposition… [emphasis added]

Inserted from <Washington Post>

I’m almost afraid to hope that the vacancy on the Court and Johnson withdrawing her name on the same day is not a coincidence.  Does Obama have sufficient courage to nominate her or someone like her?  God, I pray that he does!

The argument for appointing a moderate is that the GOP will filibuster a lefty.  In my opinion, they are likely to filibuster a moderate too.  To be sure of a smooth confirmation, Obama would have to nominate a rabid right activist.

Rather than that, there is a better alternative.  I have discussed the nuclear option before.  I’m sure I will be discussing it in detail again.  For now, I’ll just let the graphic say it.