Respectful Dissent: Justice Stevens’ Legacy | Dialogic Magazine

16 April 2010 Clint No comments

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:

U.S. Supreme Court takes portrait in Washington

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:

Since they don’t control Congress or the White House, conservatives are avoiding the term “conservative” as they gird for battle over a replacement for Justice Stevens. Instead they say “mainstream” or “centrist.” But this resolves none of the contradictions in their general position on Supreme Court nominees. Do they want someone who respects precedent, or someone who will vote to overturn Roe v. Wade? Do they want an “originalist,” or do they want to poison President Obama’s health care victory? Do they really believe in “judicial restraint,” or do they want “activism” in their own favor?

Nate Silver at FiveThirtyEight seems to agree:

The risk to Republicans is that they overplay their hand, either by filibustering someone whom the public deems to be reasonable and qualified (which I think they will not do: they can read the polls as well as everyone else) or by basically looking like a bunch of jerks (more risk there: the Senate Republicans are not the most charismatic bunch, although those on the Judiciary Committee are savvier than most).

Yet he downplays the possibility of any real drama in the nomination hearings:

In general, I’d tend to tamp down expectations surrounding the potential political fallout from Barack Obama’s nomination of another Supreme Court justice later this year, which he’ll have to do in the wake of Justice Stevens’ retirement. As important as the Supreme Court is, Congressional hearings are still Congressional hearings, and are for the most part inside-the-beltway affairs that won’t penetrate into the zeitgeist in a year where most voters have things like the economy on their minds.

Perhaps that is why Matthew Yglesias offers a seemingly gloomy assessment from the politically progressive point of view:

Note that evaluating the nominee on the merits doesn’t seem to be an option. I think it’s pretty clear that there’s no political reason to think a moderate nominee in the Breyer/Sotomayor/Ginsburg vein would actually fare any easier than someone from a more robustly progressive tradition. The decision about whether or not to launch a no-holds-barred campaign against the nominee will be undertaken for other reasons. But as best I can tell, Barack Obama (and many other leading Democrats) don’t actually think that reviving old-school judicial liberalism would be a desirable outcome. That, rather than any political calculus, seems likely to me to drive a moderate pick.

All of this ultimately serves to raise the question of the how the Supreme Court nomination process has evolved over the years. Peter Grier, writing for the Christian Science Monitor, explains how the confirmation hearing is a relatively new invention on the U.S. political scene. Dating back to Eisenhower’s nomination of John Harlan in the 1950’s, the hearings gradually shifted their focus from questions of personal shortcoming to the partisan grilling of nominees over judicial philosophy and ideological positions. This shift was pointedly marked by the nomination of Robert Bork by President Reagan in 1987, who ultimately failed to be approved by the Senate in a vote of 58-42. This has led to what Grier describes as the current climate with regards to the national judiciary:

But since Bork both parties have learned that there is possible advantage in trying to portray nominees as people who are out of the nation’s political mainstream. Interest groups have discovered that there is lots of money to be raised and attention to be gained by leading the fight against nominees with whom they disagree.

Meanwhile, Washington itself has become more and more partisan.

What’s that led to? A situation in which almost every Supreme Court nomination will be deemed “controversial” by a president’s political opponents.

And if Grier’s logic holds true in the wake of Justice Stevens’ retirement, are we doomed to another bitter nomination bout in spite of our earlier commentators’ perhaps unwarranted optimism? Given the experience of then nominee Sonia Sotomayor, I find little room for optimism, especially in the ever growing hostility of this midterm election year. The “hateful heckling” of health care reform protesters, the ”nuclear option” debate in the Senate, the fallout surrounding Senator Evan Bayh’s retirement – all of these and countless other examples leave me with little hope for a tempered nomination battle, much less a debate marked by civil discussion. It’s past time for calmer heads to prevail on issues of such national significance, but I fear that until we as citizens hold our legislators and leaders, our political action groups and non-profits more accountable for the dialogue in which they engage, we’re not going to see any measurable change in the climate or the discourse for this nomination.

In his dissenting opinion to Bush v. Gore in which the 2000 presidential election was declared for George W. Bush, Justice Stevens ended with these final words:

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.

I respectfully dissent.

It is a shame that the retirement of such an outstanding Supreme Court Justice will likely stand as yet another moment where we as a nation fail to see that we all lose because we have set aside the ability to respectfully dissent.

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For an overview of the media coverage of Justice John Paul Steven’s retirement visit the following links:

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Cross posted at Dialogic.

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