It is difficult, today, to imagine a time in America when Supreme Court nominees were chosen based on their capacity for legal thinking rather than on their ability to garner the votes of fifty-one United States senators. Our current era is one that strenuously favors ideology over intellect and caution over creativity when it comes to the appointment of judges, but once it was not so. Thirty-five years ago, President Gerald Ford set out to replace liberal icon William O. Douglas -- the same Justice Douglas whom Ford, as a member of Congress, had attempted to impeach due to "hippie-yippie"-ness five years earlier -- using one simple criterion: "the finest legal mind I could find."
By now you know the rest. John Paul Stevens was a Nixon-appointed 7th Circuit judge, a lifelong Republican who held his philosophical ground even as the Court moved dramatically to the right, rendering him, in his later years, the leader of its liberal wing. Best known for accessorizing his robe with a stylish bow-tie and a brain the size of Montana, Stevens will be remembered as being the last of his species of transformational pre-partisan mental giants (perhaps this has some connection to the fact that Stevens' was the last confirmation not to be televised). With the announcement of his impending retirement from the bench, a great many commentators have attempted to articulate both Justice Stevens' influence on the American judicial landscape and his utter irreplaceability as a justice -- neither of which can be overstated. President Obama's upcoming decision on whom to nominate is at once an unenviable task and an incredible opportunity, but the question remains of how to adequately fill a seat held by just three men since 1916: Stevens, Douglas, and Louis Brandeis, each a much-revered lodestar in the constellation of progressive jurisprudence.
Elena Kagan would make a fine Supreme Court Justice. So would Merrick Garland, Jennifer Granholm, or Diane Wood. But what the Court loses without Stevens is not merely a reliable center-left vote -- that position will remain well-manned by Justices Ginsburg, Breyer, and Sotomayor -- it's a passionate progressive bedrock, a voice with intellectual energy and moral gravitas that can not just take part in the crucial discussions of our day, but lead them. For the last twenty-four years, Justice Stevens has been the only member of the Court who has demonstrated the ability to go toe-to-toe with Justice Antonin Scalia. Some of those battles have gone Scalia's way, of course, but many have been victories for progress, due in large part to Stevens' influence as an unwavering standard bearer for the judicial principles that liberals hold dear. The many Scalia-Stevens encounters that have dotted the jurisprudential landscape over the last quarter century have shown the Court at its sparring best, with two competing conceptions of American law being masterfully articulated by bona fide judicial visionaries. But what good is the Once-ler after the Lorax leaves town? Can America abide a Supreme Court whose Joker has no Batman? Whither the worthy opponent?
Meet Elizabeth Warren. The woman who has been single-handedly trying to save the middle class from financial ruin as chair of the Congressional Oversight Panel for TARP and the chief apostle of the Consumer Financial Protection Agency (coming soon to an administrative state near you) is also the best choice to take up the causes of justice that John Paul Stevens now leaves behind. In the interest of full disclosure, I should note that in her capacity as the Leo Gottlieb Professor of Law at Harvard Law School, Professor Warren was my teacher last semester. In the interest of even fuller disclosure, I should note that she is almost certainly the most intelligent person on the planet. While it will be nearly impossible to replace Justice Stevens' moral authority on the Court in one fell swoop, his intellectual firepower, natural abilities as an impassioned leader of great minds, and persuasive skill in defense of America's most cherished legal ideals would echo in the career of a future Justice Warren. Her belief in the judicial firmament as a place that ought to serve the most vulnerable among us in equal measure to the most powerful has been evident in her work as a scholar and advocate, and her background and personality make her amply suited to lead the Court's liberal wing as they strive to protect ordinary Americans from the malignant specter of further deregulation and the narrowing of Constitutional liberties.
The most critical divide on the Court today is not manifested as Right versus Left, but rather as corporations versus people. The outcry that followed the recent Citizens United decision shed light on the growing rift between American consumers desperate for a fair shake and a Supreme Court that has moved speedily into the seediest corners of corporatism. In the coming years, the Court will likely face decisions that will further impact the relationship between this country's increasingly hamstrung Davids and its unfettered Goliaths, those corporate giants whose cups now runneth over thanks in no small part to the actions of the Roberts Court. In Warren, those underserved by the court system would have a tireless advocate, a once-in-a-generation mind; not an umpire to call balls and strikes, but a hitter who could change the game. America deserves a Justice whose conception of the Constitution is not that it should protect the rights of companies at the expense of the rights of individuals; it deserves a Justice who will say so, and say so loudly. America deserves the great conversation, and a fighter to stand up for a progressive vision of law. Elizabeth Warren can be that Justice: a leader in the Stevens mold who can keep the young century's most important legal dialogues from becoming little more than an endless parade of Scalian soliloquies.