In the retirement of Justice Stevens, President Obama has an immense opportunity -- should his Administration demonstrate the courage to engage it -- to begin the lagging project of reshaping a key Washington institution, while also mobilizing his liberal base heading into the mid-term elections.
After 35 years of service on the nation's highest Court, Stevens's retirement offers two broad sets of possibilities. The Administration could choose a moderate successor to appease the right wing, setting the Court back even further on a historic slide to the right that has choked our nation's jurisprudence for a generation. Or, if willing to embrace the Obama campaign's rhetoric and inspire its base heading into the midterm elections, the Administration could select a legal champion to help begin the long overdue process of bringing the Court back into the legal mainstream.
Of potential nominees on the short list, Judge Diane Wood holds the greatest hope of restoring balance to the Court, with Secretary of State Hillary Clinton and Stanford law professor Pam Karlan offering more visionary alternatives were the Administration to discover its political teeth. That may appear unlikely, since the Administration has generally seemed timid, willing to repeatedly concede pressing questions of policy and personnel to intractable right-wing pressure in Washington. However, hope remains that, in his next Supreme Court appointment, the President may recall his historic mandate and move not merely to replace a departing Justice, but also to restore the tradition of impartial jurisprudence that Justice Stevens represents.
The Baseline: A Conservative Justice Who Seems Liberal by Today's Standards
If Obama nominates a moderate to replace Stevens, he will only pave the Court's continuing historic slide to the right. Given the Court's transformation, Obama should act boldly by nominating an assertive legal visionary to help restore its balance.
Despite the confused observations of most commentators, Stevens was no liberal. Appointed to the bench by Republican President Gerald Ford in 1975, John Paul Stevens claimed conservatism at the time, and continues to do so today. He appears liberal only by comparison to the reactionary Justices who have joined him, as he noted in 2007 when they overruled Brown v. Board of Education: "No member of the Court I joined in 1975 would have agreed with today's decision."
He himself put the Court's descent into stark terms in 2007: "Including myself, every judge who's been appointed to the court since Lewis Powell [nominated by Richard Nixon in 1971] has been more conservative than his or her predecessor, except maybe Justice Ginsburg. That's bound to have an effect on the court."
Hope for Courage from the White House
Whether President Obama finds in the forthcoming nomination battle the courage that continues to elude his Administration on national security and corporate power may prove to be the defining point of his presidency.
Obama is, after all, a former constitutional law professor. Of all issues, he is uniquely positioned to understand -- and, with courage, shift -- the Supreme Court. Its subject matter is arcane, but certainly accessible to a President who served as editor of the Harvard Law Review. Of all people, he is perhaps the most likely to recognize the severity of the Court's conservative transformation over the last generation.
The question is whether he will act boldly to address it, or backpedal in the face of conservative intransigence to facilitate its perpetuation. Whether the Administration will revive the hope it inspired during the campaign, or instead reflect the cynicism the President claimed to dispel.
Setting aside history, legal theory, or the President's political legacy -- all of which suggest the nomination of a forceful successor to replace Stevens -- the short-term political calculus also invites boldness from the White House. With the liberal and progressive base demobilized, a public struggle over the nomination of a visionary jurist could be precisely what the Administration needs: a vehicle to cultivate a grassroots groundswell to preserve its congressional majorities in this fall's mid-term elections.
Rather than the quiet triangulation that has led the Administration into a cage of its own making, the President could set the tempo and force the right-wing to try explaining to the American people why a Justice reflecting their electoral mandate should be denied a seat on the bench.
The messaging need not be difficult: the Roberts Court "circumruled" both Brown vs. Board and Roe vs. Wade within a year of Bush's appointees joining the bench. It has struck down crucial, and hard-won, limits on corporate power in politics. It has enhanced barriers to access to justice, gutted environmental laws, restricted reproductive freedom, and opposed at nearly every turn the interests of working people, such as women abused by discriminatory workplace policies. The right wing domination of the Court is thus easy fodder for decentralized political mobilization, since the impacts of its decisions have affected more or less everyone in the country.
The Best Nominees: Wood, Karlan, and Clinton
Were the White House to approach this nomination in line with its political mandate, rather than repeating its habit of conceding struggles at the outset, three candidates would emerge to the fore--only one of whom is on the oft-discussed short list.
Judge Diane P. Wood of the Seventh Circuit in Chicago is an assertive judge, the most liberal among the candidates discussed as most likely to succeed Stevens. Unlike any other Justice currently on the Court, she would be poised to combat the likes of Scalia and Thomas. An antitrust scholar, like Stevens, she also taught alongside the President at the University of Chicago, where she gained his trust and respect. Like every Justice on the Court, however, Wood is an appellate judge. While prized by Chief Justice Roberts, the Court's lack of experiential diversity is a liability, as the President noted when nominating Justice Sotomayor. He would do well to nominate a successor for Justice Stevens rooted in a different, more representative institutional perspective.
Law professor Pamela Karlan from Stanford Law School is a lion, a bona fide visionary whose confirmation battle would likely prove contentious, but whose service on the Court would be unmatched. Moreso than anyone else in the country, Karlan wields the intellect, incisiveness, and accessibility to shift the Court's future direction. There is simply no one in her league: her intellect is a force of nature, her mettle has been tested by a career serving on the front lines of numerous struggles for social justice and equality, and her extraordinary wit ensures a popular influence to which no other jurist can even aspire. She is easily the strongest, most transformative potential nominee; the question is whether (as he pretended with Sotomayor) the President has the courage to nominate her.
If he does not, the best alternative could be within his own Cabinet: Secretary of State Hillary Clinton. Although abused by an unforgiving political sphere, Clinton would shine on the Supreme Court. With numerous Senate allies in both parties, her confirmation would be secure, and unlike any of the other potential nominees considered by the White House, she brings to bear significant political experience as an elected official. Where Karlan's wit could enable her to popularize the work of the Court, Clinton's experience as a politician could enable an even faster (though less robust) path to judicial influence: appealing to Justice Kennedy.
Without the tools to translate the Court's arcana into compelling popular terms, combined with a forceful and expansive vision of the law, Stevens' successor will ultimately help tighten the right wing's grip on the Court. With a champion like Karlan or Clinton guarding the Constitution, however, the Court's conservative majority will face meaningful opposition for the first time since Justice Thurgood Marshall retired 20 years ago.
The real question, now, is whether the President wields enough courage to actually lead, or whether he -- like the Democratic establishment whose timidity he has aptly represented--remains so intimidated by the right-wing that he will entrench and protect it.
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