This is my most recent post for the Xenia Institute, now featured at Dialogic Magazine. I encourage you to take your comments to the original article at the Dialogic website.
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The announcement of Justice John Paul Stevens’ retirement has led to a flurry of media activity around the beltway. The news has been greeted with praise from his colleagues on the court along with nearly everyone else in the political establishment, including his ideological opponents. But perhaps the more important question left to us is: what will happen next? Tom Goldstein at SCOTUSblog thinks that it will be a “pretty efficient” process that will ultimately lead to the irony of a more conservative court under a Democratic president. Jack Balkin agrees that Obama’s first priority in will likely be to avoid expending too much political capital in a midterm election year; however, he goes on to offer what he views as a potential second priority:
Associate Justice John Paul Stevens posing for photographs at the Supreme Court, September 29, 2009. UPI/Gary Fabiano/POOL Photo via Newscom Content © 2010 Newscom
Second, and equally important, President Obama will nominate someone who is likely to sustain the President’s policies while he is in office, first, on the issues he cares about most at the time and, secondarily, the issues necessary to keep his political coalition together … [These might include] support for the constitutionality of the recently passed health care bill, preservation of Roe v. Wade (as modified by Casey), and support for robust (but not necessarily unilateral) Presidential power in surveillance, detention, military commission, rendition, and other war on terror issues.
This will present an interesting scenario according to Michael Kinsley at The Atlantic. He wonders if the Republican’s desire to expend political capital isn’t also at question. Noting their care to avoid the term “conservative” in the discussions surrounding Stevens’ replacement, he raises questions as to where their priorities might lie in the upcoming nomination process: continue reading…
