It’s natural that the liberal MSM has become sentimental about the retirement of Justice John Paul Stevens, a longtime champion of “progressive” causes. But this article in the Washington Post claiming that, for liberals, Justice Stevens is “the irreplaceable Justice” carries things too far.
Author Robert Barnes notes Stevens’ liberal bona fides — he “embraced affirmative action,” considered the death penalty unconstitutional, defended abortion rights, and opposed the notion that the Second Amendment guarantees a right to personnel gun ownership. Barnes concludes that “it is questionable whether Obama, in the current political climate, could replace Stevens with a nominee who shares such strong opinions.”
Barnes, I think, is wrong. The positions Barnes cites are staples of liberal jurisprudence. Obama should have little difficulty finding someone who reasonably can be expected to agree with them.
For example, I consider it likely that Elana Kagan, the former Harvard Law School dean and current U.S. Solicitor General who is thought by many to be the front-runner for Stevens’ spot, agrees with all or most of these positions. And if she doesn’t now, she may come around once on the Supreme Court. After all, Stevens himself wasn’t particularly liberal in his early days on the Court. He “grew” in office.
Whether a nominee holding Stevens’ view would face difficulty being confirmed in “the current political climate” probably depends on the extent to which he or she is on the record as to these and other controversial matters. A nominee who isn’t much on the record should have an easy time being confirmed. A nominee who has publicly staked out positions will have a tougher time, but would hardly be dead on arrival. It takes only one Republican vote to break a filibuster and the Senate still contains a few Republican moderates.
Barnes suggests that Stevens is also indispensable because of his ability to forge voting coalitions and to write forceful opinions. He notes that when Justice Kennedy joins with the liberals, Stevens often assigns him the opinion. I don’t think it takes a rocket scientist to figure out that this is a good move.
Barnes also notes that, because of his seniority, Stevens is the second to speak during the Justices’ conference and thus can promptly rebut Chief Justice Roberts. Next term, Justice Scalia will speak second. Barnes knows the Court better than I do, but I doubt that, without Stevens around, the Court’s liberal bloc will crumble in response to the one-two punch of Roberts and Scalia, formidable though it is.
As for Stevens’ opinions, there’s no doubt that they tend to have bite. Stevens has something most liberal judges lack — the ability to argue for liberal conclusions in plain, forceful words, free of jargon. But it’s a stretch to claim that this makes him irreplaceable. For all of his merit as a writer, Stevens hasn’t forged a jurisprudence that makes his writing a beacon. Providing reporters like Barnes with good sound bites isn’t the same thing as being indispensable to liberals.
The thing I’ll miss about Stevens is his fondness for talking about the past. The Court has plenty of old Justices but none of the others seems particularly inclined to serve as a “bridge to the past.” Nor, as old as they are, can any of them reach back as far as Stevens. For example, in one fairly recent opinion, Stevens invoked the era of prohibition. No other Justice has a personal recollection of those days.
But I doubt that many “progressives” find this aspect of Stevens’ work all that appealing, much less irreplaceable
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