While today the political world rushes to speculate about who will replace Justice John Paul Stevens on the Supreme Court, we should pause for a moment to consider the man and his legacy -- if for no other reason than that this reflection informs what President Obama should look for in a successor.
Though few Americans could recognize the soft-spoken, bow-tied Justice if they met him on the street, over the past 10 years Justice Stevens has emerged from the shadows of his liberal predecessors, such as William Brennan and Thurgood Marshall, to become a towering figure on the Supreme Court and one of our nation's greatest Justices. He has assumed a dominant role on the Court not only from his seniority, but through the force of opinion-writing and his ability -- as a Republican appointee, and the Court's only remaining WWII veteran -- to bridge the Court's ideological divide. Among his recent written opinions are numerous progressive victories for the Constitution and the rule of law, including Gonzales v. Raich (2005), Hamdan v. Rumsfeld (2006), Massachusetts v. EPA (2007), and Wyeth v. Levine (2009). It is perhaps true to say that no American since Ben Franklin has played a greater role in the course of American history after his 80th birthday than has John Paul Stevens.
Justice Stevens is irreplaceable for many reasons, not the least of which is a critical power he has held for the last 17 years as the Court's most senior justice. This seniority has entitled him to assign the opinion-writing responsibility in any case in which he, and not the Chief Justice, was in the majority. This has meant that over the last decade, Justice Stevens has written a number of monumental opinions in which the Court's swing Justices -- Justice Sandra Day O'Connor before her retirement, and Justice Anthony Kennedy since -- have sided with the Court's liberal wing. Progressives thus need to remember that, to a certain extent, the Court is going to shift right no matter who President Obama nominates simply because the two most senior Justices will now be Antonin Scalia and Anthony Kennedy, and these conservatives will now get to assign or write many more Supreme Court opinions, a fact that will certainly affect the sweep and content of the Court's future rulings.
So, how does President Obama replace the irreplaceable? He can't, but here are a few things the President, and the progressive community, should keep in mind as we begin to discuss Justice Stevens' replacement:
First, the Court needs a consensus-builder just as much as it needs a progressive firebrand. As summarized above, much of Justice Stevens' power came from his ability to bridge the Court's ideological divide and forge Supreme Court majorities on critical issues from environmental protection, to the scope of federal powers, to the meaning of liberty and equality. While progressives should want a Justice who passionately articulates a vision of the law, progressives also need a Justice who can successfully "count to 5" in order to produce actual victories on the Court.
Second, President Obama needs a nominee who can complete a task begun by Sonia Sotomayor: branding the Obama judiciary. During her confirmation hearings, Justice Sotomayor powerfully asserted a straightforward "apply-law-to-the-facts" approach to judging, but she came off sounding almost indistinguishable from John Roberts and his riff on judicial umpires. President Obama's next nominee needs to improve upon Sotomayor's performance by articulating the differences between judicial conservatives and progressives and focusing on how the Constitution and the law itself point in a progressive direction.
In particular, the Court's ruling in Citizens United v. FEC provides an opening for this branding exercise. The Court's 5-4 ruling, opening the floodgates to corporate spending in elections without any persuasive justification in the Constitution and the law, has outraged Americans across the political spectrum and focused the President's attention on the courts -- something also recently reinforced by the immediate challenge by conservatives to his flagship health care bill. Indeed, every aspect of President Obama's agenda is threatened by judicial activism from the right. President Obama should use the Citizens United ruling as the centerpiece of his case for the confirmation of his chosen replacement for Justice Stevens, who wrote a brilliant and passionate 90-page dissenting opinion explaining why Citizens United ran afoul of constitutional text and history.
Finally, Justice Stevens' dissent in Citizens United illustrates how important it is for the progressive wing of the Court to include a Justice who can go toe to toe with Justice Antonin Scalia and the Court's other conservatives over the text and history of the Constitution. Justice Stevens has done this over and over in many opinions over the past 35 years, and won more battles than he has lost, showing that the Constitution itself points to progressive outcomes. President Obama should seek a successor who can fill this critical role.
In sum, while President Obama cannot fully replace Justice Stevens in the role he plays on the Court today, he must find a worthy successor, who, like Justice Stevens, can convince his colleagues and explain to the nation that the Constitution is a progressive document.
conservatives in Alito and Roberts. These right wingnuts will be on the
Supreme Court for at least the next 30 years. Will Sotomayor? No.
Obama has to select a young progressive - an Andrew Cuomo.
Can you imagine Scalia and Alito's reaction to such a pick?
OK, if you say so.
meaning that opinion based word spin is left wing?
personally I think that interpretation of laws should be seen in
black and white.... its either illegal or it isn't.....
wriggle room is the very reason we have these problems in this country today
opinion should have no place in justice...
and to appoint a "progressive Firebrand" would only
lead to more problems...
I agree opinions should have no place in justice. But they sadly do. And look at the U.S. Supreme Court, you'll see it leaning far to the right of the political spectrum.
Obama has tried hard to deal with Republicans. But they chose to appear to negociate, then they won't budge a single bit, then complain that Obama is not dealing with them. The healthcare bill fight demonstrates that perfectly. David Fromm, as much to the right as anyone and Bush Jr's speechwriter, decries exactly that. So Obama won't try to please Republicans on this. He'll choose the next Justice as he, and Democrats, wish.
I quote "Could", because, I am not aware of any amendment or any part of the original document which states that a decision may not be decided by any "Opinion" of a Justice who is presiding over a Constitutional Case.
I fear that any Nominee that would dare speak about the Constitution as being a "Progressive Document" would surely polarize the Conservatives and most likely doom that nominee's confirmation, and he/she may not even get to a vote on the floor. I hope our President does nominates a Jurist who believes in the rights of a Person, over the rights of any Corporation or Entity, and believes in the Powers of Separation between State and Church, and will unequivocally deny the ability of any Church or Religion to interject their ideology upon our Governments both Local, and Federal, and especially our Public Schools, as well as their will upon individuals, that do not follow their ideology”
and it isn't..... Defense of the collective and Defense of the individual are diametrically Opposed... equally as Opposed as the Rights of the Corp or entity VS. the rights of the individual...
Collective Mentality, Corporate Domination and Overbearing Influence of an entity..
all of these things are dangerous.... and all of these things are destructive to society....
Because all of these elements neglect the individual....
Protectionism of the Individual should be the basis of every motivation taken by our government....
and clear lines need to be drawn to define what the individual means......thus removing the Overbearing power of a corporation being represented as an individual.
because corporations are nothing more than Small scale political structures designed to pool resources and structure function..... and they need to be acknowledged as such... the motivations of these "top brass" in corporations is not very different from "top brass" in the federal government... and that as well needs to be acknowledged.... Using one Elitist group to limit and control the actions of another elitist group is essentially the same as replacing one dictator with another.....
and that has never worked... the solutions to our problems are in the hands of we the people.... and as along as we the people rely on government to implement these solutions... we the people will continue to lose...
In an effort to "reach across the aisle" Obama will nominate a moderate conservative to the seat. A few republicans will early on say its a fine nomination, then will get hammered by Fox. Within a month no republican will support the nominee and all will vote against them anyway.
The majority of the Dems will applaud the nomination as a great choice. With the exception of a few progressives, and the Blue Dogs. The Dem leadership will then publicly chastise the progressives in the media, and pundits on bloggs (er hum!) will tell the progressives that's as good as it's going to get for them, shut up and support the nominee. Meanwhile the Dem leadership, Obama, and the nominee will assure the Blue Dogs that he or she will come down hard on abortion rights (or some other blue dog issue). The nominee will pass with a partisan vote. And then when Obama's presidency is up, and a Republican is back in power, they'll ram through a extremely conservative justice, with no "concern" for partisanship, and the country will be left with an extremely right wing court!
In addition, look at lobbying and congress and ask, ""do you even have a justice system""?
I do not believe you have had justice since Richard Nixon.
What does this mean? That it's past time for liberals, and honest legal scholars, to push back against the false narrative of a balanced court. Every current member except Ginsburg is more conservative than the justice he/she replaced (verdict is still out on Sotomayor, but she's so far not to the left of Souter). Thomas, Scalia, Roberts and Alito are movement conservatives on almost all issues, significantly to the right of the public, and of the center in terms of constitutional interpretation. Kennedy, today's "center," is a solid conservative. Breyer, Ginsburg and Sotomayor are solidly in the moderate tradition-- to the right of Blackmun-- they vote "liberal" because the arch-conservative + Kennedy majority makes decisions that not even a moderate can agree to. There is NO ONE on the left as an intellectual counterweight to the FOUR arch-conservatives. We need 1-2 true liberals on the Court; until that happens, the constitutional debate on critical issues will continue to be skewed. And the response to "no liberal firebrands" is "Why the **** not? The conservatives have four."
Continued...
Don't avoid the fight! Fight for someone who will be right for tomorrow!
I knew that, but it still makes me sad.
Great essay. Justice Stevens was a great justice, and his contributions to the U.S. should not go unnoticed.
Why he's Toobin's top choice, why Obama will pick her and how she might change the Supreme Court.
At the award winning Fresh Dialogues interview series.
Fresh Dialogues Channel: http://www.youtube.com/watch?v=VLhBFwMRRxc&feature=channel