Yesterday, Supreme Court Justice John Paul Stevens announced that he would retire from the Surpeme Court at the end of the Court's current term this summer. Stevens, who will soon turn 90, was appointed by Republican President Gerald Ford. Stevens will step down as the second-oldest justice to ever serve on the Supreme Court, slightly behind Justice Oliver Wendell Holmes, who retired in 1932 at age 90 years, and 10 months. Depending on the date of his actual retirement Justice Stevens quite possibly could end up being the second longest serving justice behind Justice William O. Douglas.During his tenure on the Supreme Court, Stevens "evolved from a maverick who would often write solitary opinions to a coalition builder and leader of the court's liberal wing." Richard Fallon, a Harvard Law School constitutional law professor made the following observation about Stevens: "There really were two Justice Stevenses...[t]he first Justice Stevens was a somewhat iconoclastic moderate. The second Justice Stevens was the great liberal voice on the Supreme Court for the past two decades." Justice Stevens stance shifted from a moderate stance to a more liberal stance in the early 1990's upon the retirement of liberal Justices William Brennan and Thurgood Marshall. Professor Fallon noted: "It was as if there was a void on the court...[t]here was no longer a great liberal voice, and Justice Stevens moved to fill that void."
Let's examine some of Justice Stevenses notable majority opinions and dissents:
Older age did not slow Justice Stevens down. Most recently, in Citizens United v. Federal Election Commission, the recent decision paving the way for corporate spending in elections, Justice Stevens issued a passionate 90-page dissent. This momumental decision was discussed recently on this blog by my colleague Steve Ramirez. Citizens United struck down decades-old precedent banning corporate money from political campaigns. In his dissent, Justice Stevens wrote: "While American democracy is imperfect, few outside the majority of this court would have thought its flaws included a dearth of corporate money in politics..." Additionally, Justice Stevens noted: "The difference between selling a vote and selling access is a matter of degree, not kind...And selling access is not qualitatively different from giving special preference to those who spent money on one's behalf." Only time will tell whether Justice Stevenses admonition that treating corporate speech the same as that of human beings holds validity.
With the announcement of Justice Stevenses retirement, the ball is now squarely in President Obama's court, no basketball pun intended. Justice Stevenses retirement reminds us that presidential elections are extremely important. By selecting Supreme Court Justices, the President can have an impact on society far beyond their years in office. Indeed, the judicial selection process can have generational impact.
If I could use this blog as my open letter and suggestion to the Obama Administration I would offer up but two (2) meager suggestions. I truly hope that President Obama takes this opportunity to appoint a moderate to liberal leaning associate justice. I think in recent years the Supreme Court majority has moved in a decidedly conservative direction. Often, judicial decisions reflect the overriding needs of society when there is a level of ideological balance and perspective. Hopefully, with balance between conservative, moderate, and liberal viewpoints judges must compromise. Ideally, there is no tyranny of the majority or tyranny of the minority. In order to get things accomplished, judicially and policitally, judges should decide to roll-up their sleeves and work together to reach the best judicial outcomes for society.
As a final matter, I hope that President Obama seeks a measure of diversity in his selection. Let me be clear, when I say diversity, I mean diversity in a broad sense. What one thing do all current Supreme Court Justices hold in common? If you look at the composition of the current Supreme Court, all the current judges are former federal appellate court judges. In the past, Supreme Court justices entered the bench from a diverse number of career paths. Former presidents, senators, politicians, administration officials, distinguished lawyers, law professors, business people, and others populated the bench. Perhaps the time has arrived to broaden the Supreme Court's perspective. As I've grown older, I've keenly come to realize that life is all about the choices that one makes. President Obama I urge you to choose wisely.
I leave you with several questions. Do you think the Supreme Court's liberal wing will be silenced by Justice Stevenses departure? What qualities do you want to see in the next Supreme Court Justice? If you were President Obama, who would you pick? Undoubtedly, it will be very interesting to follow the buzz in the coming weeks and months concerning President Obama's selection.
great post. thanks for the insights. i wonder whether justice stevens has grown to regret his vote in bakke (with rehnquist rather than with marshall and brennan).
ReplyDeletea reluctant liberal is how i would categorize stevens.
I definitely think President Obama will put a liberal judge on the bench, and that is probably a good thing. I personally am very moderate, and don't want to see the court have an overwhelming lean in either direction. I agree that is important to maintain a balance. Although it might be interesting to appoint someone who doesn't come from an appellate court, I don't know if that will happen. The American people hold experience in high regard. President George H.W. Bush got a lot of grief for appointing Justice Thomas, who had little judicial experience. Obama probably will pick an experienced judge with a liberal lean. I am curious to see whether he will appoint another minority/woman to the court.
ReplyDeleteKaren Lander:
ReplyDeleteI like the post. A spot opening up on the Court is always an exciting time but its a bit frightening, too. Who will it be? The NYT highlighted Obama's apparent mindset on nominating a replacement for Stevens: "...in what legal scholars took as a clear swipe at the Citizens United decision (for which Justice Stevens wrote the dissent), the president said he would look for a justice who “knows that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.”" http://www.nytimes.com/2010/04/10/us/politics/10stevens.html?fta=y
It sounds like a potential nominee's take on Citizens' United will be a major litmus test Obama uses in his selection. Members of Congress are commenting they are interested in someone who is "mainstream."
I do hope the nominee will be someone who is a proponent of protecting ordinary citizens in the law. I wish for a liberal, someone to the left of the mainstream. Someone to balance things a bit. But we'll probably get "mainstream."
I also like to think about the effect of a Supreme Court appointment on the person appointed. It is a position where an individual may expand and change and shift in philosophy. As Professor Grant suggests, this seemed to happen to Justice Stevens. I keep hoping this will happen to some of the existing members:-)
I think President Obama will try to put a liberal judge on the bench but masque them as a moderate to try and get them in as quickly as possible. I hope that a qualified individual is chosen but I also believe that our "qualification system" is off. Just as we select Presidents exclusively from political offices, we sometimes assume that only appellate court judges are qualified for this position. It would be nice for Obama to shake things up with an interesting choice in this regard but because of the divide in American politics this will likely not be a possibility. Choosing a traditionally "inexperienced" candidate will not look good for Obama. Also, I think it is very likely that he appoints a minority to this position.
ReplyDeleteTiffany Smith
ReplyDeleteThere has been a lot of discussion regarding this topic especially since Prez drew so much attention with regard to his appointment of Sotomayor last year. Either way there doesn't seem to be a middle ground. Also, with regard to the comment about a minority appointment, this could be a positive. The appointment criteria he, i.e. the president was looking for was "some one with an independent mind, integrity, a fierce dedication to the rule of law and a keen understanding of the the law affects the daily lives of the American people." It begs the question what a "keen understanding of the of the rule of law affects the daily lives of the American people" really means. With all due respect, it seems that the majority of the persons selected (with a minority few) have been from fairly good backgrounds and expensive, ivy league educations and with these current harsh economic times that is hardly an understanding of the vast majority of the American people. However, thats just an opinion...
I was just reading an article on the retirement of Justice Stevens titled “Democrats Dread Supreme Court Fight After Elections” by Byron York of the Examiner. Although I was hoping for a liberal appointment to balance the court and also hoping for someone truly diverse (race, age, sex, cultural, and experience) – I had not stopped to consider the timing of his retirement and how much that could impact the appointment. It was also interesting to read the comments by the bloggers in agreement and disagreement over the potential filibuster, regardless of the timing. When I started to think about the voting and alignment during the health care reform and how the parties managed to unite to vote – this could really be an “interesting” appointment. Admittedly it looks like before the election would be the best chance for the Democrats to be filibuster proof carrying 59 votes…needing only one Republican vote. But with the retirement date unknown and the Republicans not saying they will, but not agreeing not to engage in a filibuster – makes for an interesting political climate in Washington.
ReplyDeleteAs a non-attorney, it is my hope that Obama nominates someone who has had a wide-range of legal/practical experience. I think shifting away from federal appellate court judges might provide some pragmatism that I believe is missing from the current discourse. Could it be someone like the guy who administers the 9/11 and TARP (Is he a liberal?). Of course this person should have a moderate to liberal lean, but I too am concerned about the hearings process. Sotomayor got through with relatively little rancor. But with the passing of health care, Obama's swipes at the Court in his State of the Union, the upcoming mid-term elections, Republicans won't let this slide by. So let's just take a deep breath and let the games begin.
ReplyDeleteThis will certainly be an interesting process. I find it intriguing that the responders to this post are suggesting that Obama will appoint another liberal or moderate justice. Upon the announcement of Justice Stevens' retirement, I have heard a number of critics suggest that Obama will appoint a conservative justice. This assertion is due to the amount of criticism that Obama is getting recently, the American reformations that we are experiencing at the time such as the Health Care reform and the issues within financial industry, as well as the fact that Obama just appointed a minority liberal justice. Whatever Obama's choice, it is a hope that fair decisions will be made within the American Judicial system. Hopefully, if Obama appoints another conservative judge (or even moderate) anther justice will step up and follow Steven's lead by filling in the void to ensure a more equitable and balanced bench.
ReplyDeleteJustice Stevens without a doubt has made a tremendous impact. Now everyone will be waiting to see who Obama will elect next and I highly doubt it will be a liberal Justice, or a conservative one. He would have to balance it out and most likely will be a moderate Justice and i think that would be the best. Even though I consider myself a liberal myself, I believe it would be unfair to the American people to only go with one particular side, and hopefully he can gain more respect. More diversity among the Justices is something I would, and I know others, would like to see. Obviously other professionals in the past have been qualified and hopefully President Obama will go that direction.
ReplyDeleteThis was a great post. I am excited to see who President Obama appoints. I hate to see Justice Stevens leaving the Court and hope that someone else fills his "liberal" shoes regardless who Obama appoints. All but two of the top five potential nominees seem to have a judicial background and most are women, so it could be a minority in that sense. Obama understands the future consequences of his important decision and with the Court lately leaning to the conservative side; I think he will appoint someone that is more liberal to balance things out.
ReplyDeleteAgreeing with the non-attorney, I too would like to see a departure from the status-quo in President Obama's selection. I realize that many lawyers and law-makers have the skill set and much of the training that we would want a Supreme Court Justice to have; however, there are individuals who have more diverse backgrounds that may also serve on the Court. I would like to see someone who is moderate-liberal but who is extremely unique, and would not be predictable on every single issue.
ReplyDeleteJeffrey Toobin has generated some of the most thoughtful analysis on the role that Justice Stevens has played on the court, on the elements that inform his judicial philosophy and positions, and on the transition phase of the transition period that will be sparked by his departure as one of several recent turnovers. Stevens has never considered himself a liberal – he was, after all, appointed by Ford – but he does consider himself a fiercely independent voice, and he had a personal commitment to not silence any reservations he might have about a case in the interest of “collegiality,” but to dissent and put it on the record, knowing the present and future value of the legal counterarguments to the transparency of the adjudication. Of the veteran coalition builders, only Kennedy will be left – followed in seniority and power by Scalia and the new Chief Justice – this indicates that a tilt to the right is on its way. One interesting insight from the Toobin interview on NPR:
ReplyDelete“In Supreme Court history ... we often put too much emphasis on who wrote the opinion and not enough on who assigned the opinion, because that can be very important. Oftentimes, these coalitions are very fragile. So it is the assigning justice's job to assign the opinion to the justice who you might lose if someone else wrote it. By giving Lawrence v. Texas to Kennedy, Stevens held on to [Kennedy's] vote and preserved this enormous victory for gay rights — even though it's Kennedy who gets the glory, not Stevens."
That said (since you asked) my vote is for Elena Kagan – a good coalition builder (settled the Harvard ideology wars) and has been capably arguing before the court for ages.
It seems very unlikely, but personally I hope that Obama nominates Koh or Karlan as there are already plenty of moderate liberal justices on the court. I think Obama's view of the law lines up more with Kagan and the moderate liberal viewpoint so thats probably who he will go with.
ReplyDeleteI look forward to seeing this process once again and I am curious to see how quickly President Obama tries to schedule the vote, and if it will be before the July recess. I'm sure the Republican party will be anxious to jump all over the President's decision if it is made to look like he is rushing it through, especially with the Health Care bill.
ReplyDeleteIt is sad to say but I think that unfortunately the liberal wing of the court is going to be silenced and possible for a long time into the future. With the current political atmosphere in Washington, Obama will face a hard fight for confirmation of any Justice, let alone a very liberal one. It is improbable that he will appoint anyone who is more Liberal than Stevens is. They simply will not be able to get confirmed. This means that he will have to choose an appointment that is more along the lines of a moderate liberal. This will have the effect of leaving us with a more conservative court next fall then we have now. A strange twist but an inevitable one indeed. Further more the tide seems to be moving toward the right in the general public which means we will probably see a Republican in the Whitehouse in 2012. There probably will not be another chance to appoint a Justice before then. This means the Court is only going to continue its swing to the right and continue to take away the rights of those of use who are underrepresented in this country. We will miss you Justice Stevens.
ReplyDeleteI firmly believe that President Obama will nominate someone of like-mind, as they will decide issues of great importance for decades (hopefully). Therefore, I believe Obama will place appropriate emphasis on political ideals of candidates; but, he will also likely consider age and diversity. Age is key, because of the expectation of longevity on the high court. Diversity is also key, because it should reflect the diversity of our nation. Perhaps with this appointment President Obama will consider an Asian-American, Native American, or African American.
ReplyDeleteI agree with Dominique. This is one of the most important decisions that Obama will make during his presidency. I hope Obama nominates someone who is very cultured and has a diverse background. I think the United States Supreme Court has lacked diversity for quite some time. Nominating a person with those qualities is a step in the right direction.
ReplyDeleteI find it very historic that Obama will be making his second appointment to the high court within 18 months of his presidency. The fact that he is making his second appointment to a branch of government that is arguably the most powerful, shows the influence the president has to indirectly shape the laws of this country. Because of the heavy partisanship being displayed in Washington now, I believe Obama is likely to nominate a Justice that will gain Senate approval without unnecessary delay. That is not to say the GOP will not use tactics often displayed in political games. However, I believe his nomination will be someone with minimal controversy that will get at most, slight opposition from the right.
ReplyDeleteThe opportunity to appoint at least two Supreme Court Justices to lifetime terms during one Presidency term is almost unheard of, but I feel as though it could not have come at a better time. I am confident that President Obama will appoint a suitable candidate to fill this seat. If I was the President, my primary focus would be to achieve the most balanced Court I could, with respective liberal and conservative voices representing the USA citizens. I don't believe that it is imperative to appoint a specific "type" of person to make history, eg. African American woman. President Obama's first term has been drenched in historical events, at this point we need someone who will best fit this position. I look forward the appointment of a well versed, open-minded and experienced Justice to serve the Court.
ReplyDeleteThe opportunity to appoint at least two Supreme Court Justices to lifetime terms during one Presidency term is almost unheard of, but I feel as though it could not have come at a better time. I am confident that President Obama will appoint a suitable candidate to fill this seat. If I was the President, my primary focus would be to achieve the most balanced Court I could, with respective liberal and conservative voices representing the USA citizens. I don't believe that it is imperative to appoint a specific "type" of person to make history, eg. African American woman. President Obama's first term has been drenched in historical events, at this point we need someone who will best fit this position. I look forward the appointment of a well versed, open-minded and experienced Justice to serve the Court.
ReplyDeleteThe Supreme Court has been leaning conservative lately and I don't think this is a good thing. As a 2nd year law student who reads multiple high court opinions on a daily basis, I find great truth and merit in the opinions written by Justices Stevens, Brennan, Marshall, etc. Unfortunately, today the liberal wing of the Supreme Court is becoming the minority view. I don't see this changing the near future. President Obama needs to appoint a moderate/liberal justice who will not only lead the liberal voice of the Court, but be a voice of the American people.
ReplyDeleteI think it would be really interesting to see a good state court judge appointed. However, it seems like there is at least some discussion that the appointee should not be a lawyer. [http://www.democraticunderground.org/discuss/duboard.php?az=view_all&address=433x260403]. I don't know that it is a requirement that an appointee be a lawyer or former judge, but I think it would be reckless to appoint someone who isn't one of either. However, I would support an appointment of the correct lawyer even if under 30 years old with limited experience.
ReplyDeleteI think that Obama should pick a moderate/liberal justice. There are many important decisions that should not be overturned. There has been some talk in the media about picking a person who has not sat on the bench. I think this is a critical mistake. The Supreme Court needs to have a person who has the trial court room experience, who understands what happens when a witness is on the stand, a person who can infer from a transcript what has happened, and a person who understands artful legal comments. To pick someone not on the bench will only hinder the Court's ability to reach thoughtful and effective decisions. To pick a person without judicial experience will undermine the one institution that is so highly respected.
ReplyDeleteJustice Stevens service his position with honor. He will be sorely missed as he always brought a genuine voice of reason to the Court. I do not see his retirement as an end to the liberal voice of the court as I am sure that he will be replaced with a like minded justice. Perhaps his most enduring legacy will be his lengthy dissent on the recent case Citizens United v. Federal Election Commission. Justice Stevens always looked out for the little guys and served with passion. There are big shoes to fill and hope that who ever takes his seat will serve the bench with the same dignity.
ReplyDelete- Jonathan Haskell
Kyle Sheehan
ReplyDeleteI doubt that the liberal voice of the court will end up with Justice Stevens' retirement. Whether Obama picks a liberal advocate (I'm sure that he will) or not, a current justice would become the voice of the liberal wing of the court. First and foremost, Obama should pick someone who is on the bench. To do so would go against what the court stands for. To pick someone not on the bench would put the Supreme Court's role in jeopardy. One needs to understand what a judge's role is and have at least some track record of adhering to those principles. As far as the political leanings of a probable justice, I am assuming that he will pick a liberal justice. I just hope that justice has a record of adhering to the Constitution and using appropriate LEGAL reasoning in their opinions.
I think we should appoint Steven Speilberg. We need a strong jewish male influence on the justice system. At least his dicta would be entertaining and kosher. Jewish traditions and teachings from the Torah could be instrumental in swaying the majority of the court's future decisions.
ReplyDelete