An affectionate and heartfelt tip of the hat is due to Justice John Paul Stevens, who on Friday announced his retirement from the Supreme Court, just eleven days before his ninetieth birthday. In a time when the majority of the court makes bizarre decisions like finding that corporations have the same speech rights as citizens, it is important to honor a man who fought, in his own quiet way, for the rights of all people.
Stevens was a link to a different era. He was appointed in 1975 by President Ford, and more than ten years of seniority over the next most senior justice on the court. He had been the most senior justice for sixteen years, and ends up with the third-longest tenure of any Supreme Court justice in history (Stevens replaced the record-holder, William O. Douglas, who in turn replaced Louis Brandeis, who served a relatively brief 23 years). When he was appointed, Ford was interested in finding the best man (no women yet) for the job, and cared little about ideology. Stevens' confirmation hearings were held quickly, and untelevised (the last such hearings to be so shrouded in mystery). Amazingly, he was not asked one question about Roe v. Wade, which had been decided two years earlier. He was confirmed 19 days after his nomination, in a 98-0 vote. I think it's safe to say we will never see a unanimous confirmation of a Supreme Court justice, at least not in the next thirty years.
Appointed by a Republican, Stevens, over time, became the leading liberal on the court. This is partly due to Stevens' own evolving philosophy, particularly on the death penalty and affirmative action (he voted against it in the Bakke decision, but for it in the University of Michigan law school case). But I think this is mostly due to the court's tilt rightward. Long gone is the residue of the Warren Court, when unabashed liberals like Douglas, Brennan, and Marshall served. Today a careful moderate is seen as a shining beacon of liberal thinking.
Stevens, by all accounts, is a fine gentleman. He didn't give many interviews, but one has learned over the years that he favors bow ties, is a big Cubs fan (he was present at the World Series game in 1932 when Babe Ruth called his home run shot off Charlie Root, and confirms that Ruth did indeed point to centerfield before slamming the round-tripper) and is a model of politeness to advocates on a bench where none is called for. He was also, especially in the years following the retirements of Brennan, Marshall, and Blackmun, a strenuous voice for the interests of progressive thinking. He has a number of terrific notches in his belt, the most important perhaps his opinion in Hamdan v. Rumsfeld, which put the brakes on the Bush administration trying terrorist suspects in military tribunals--Stevens actually believed that everyone deserves a fair trial--what a nut! The quote of his that most heard following the announcement was his dissent in Bush v. Gore: "One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law."
Stevens' record was not completely unblemished, at least not from my vantage point. He authored the decision F.C.C. v. Pacifica, which dealt with George Carlin's "seven dirty words" act being banished from the airwaves, and he also dissented strongly in Texas v. Johnson, which established it was unconstitutional to pass laws banning flag-burning. Perhaps this was because Stevens was a veteran, he is now the only justice with military service. But he heartened old free speech geeks like myself with his dissent in ACLU v. Ashcroft, that found that filters guarding against child pornography were overbroad in blocking freedom of access to the Internet: "As a judge, I must confess to a growing sense of unease when the interest in protecting children from prurient materials is invoked as a justification for using criminal regulation of speech as a substitute for, or a simple backup to, adult oversight of children's viewing."
Stevens will be replaced, most likely, with someone of similar philosophy, but his shrewdness of building coalitions will be missed. As the most senior justice, he had the power of assigning opinions when in opposition to the Chief Justice. That task will now fall to Ruth Ginsburg, who hopefully will have learned some of Stevens wiliness.
So who will replace Stevens? The White House has taken a lot of the fun out of the guessing game by releasing the names of five people, all of whom were in the running last year, when Sonia Sotomayor was chosen. They are: Elena Kagan, Solicitor General; Appeals Court judges Diane Wood and Merrick Garland; Secretary of Homeland Security Jeannette Napolitano; and Michigan governor Jennifer Granholm. Apparently President Obama, flush with success after getting health care reform through, is not interested in flexing any muscle to push for a more liberal candidate, like Harold Koh or Pamela Karlan. This shortlist is clearly an indication that Obama is not interested in protracted battle in the Senate, which is a shame, because with 59 Democrats now in the Senate he could probably get through just about anyone he wants.
Instead he's going to play it safe. Many, including Scotusblog's Tom Goldstein, sees Kagan as a fait accompli. She's only 49 (remember, this seat has a propensity for longevity), and has been praised by Republicans. She's never been a judge, but was dean of the Harvard law school. Some liberals, including Salon's Glen Greenwald, worry about her stance on executive power (she's for it). That trouble me, too, particularly since Stevens was leery of it, but I'm going to take the attitude that as long as this pick is in Obama's hands, I'll be okay with whomever he decides.
One thing that could prevent Kagan's appointment, and it's a delicate topic--her religion. She's Jewish, and of course that in itself is not an issue. But Stevens was the only Protestant on the court, and he leaves an octet that includes six Catholics and two Jews. The very notion that one day we may have a Supreme Court that includes no Protestants is mind-boggling. Would a Kagan appointment arouse sputtering protests from the evangelical wing of the opposition? Judge Garland is also Jewish, which makes me think that we can't rule out Diane Wood (I find no evidence of her religion, but she is not Jewish or Catholic). Wood is older (she'll be sixty in July), but is a former colleague of Obama's at the University of Chicago, and to hear legal scholars write about her, she is the most qualified of the shortlist, intellectually speaking. She is also the most liberal of the group, which pleases me. Furthermore, she offers a diversity of geography. Though born in New Jersey, she went to law school in Texas and now lives in Chicago. More than half of the current court hail from the northeast. If I were advising Obama (a bad thing to contemplate), I'd suggest appointing Wood now, and if he really wants Kagan to be on the court she could replace Ruth Ginsburg, who will likely retire in the next two years.