Another liberal Supreme decides to get out while the getting's good

[thatcrazycajun]

Confirming hints he's been dropping for months, the leader of the US Supreme Court's ever-dwindling liberal wing, Gerald Ford appointee John Paul Stevens, yesterday formally informed the White House of his intention to retire with the close of the Court's current term. More on the story here.

The timing of Stevens' move, as those with any savvy about my country's political scene of late will realize, is not the tiniest bit coincidental. In theory, the Supremes are supposed to be above the roil of partisan politics...but the Bush v. Gore ruling put paid to that quaint notion a decade ago, and most of those involved in that infamous decision are still seated. Stevens himself has admitted as much publicly; since his advancing age (he's 90 this week) makes leaving needful, he wants to go out while he still has a hope of being succeeded by someone of like views. Given the high level of public anger (well, some segments of the public anyhow) over the recent health-care reform battle and its outcome—and historic patterns of the party holding the White House losing in Congressional midterm elections—conventional wisdom dooms the Democrats to lose a not-insignificant number of seats, even if they still manage to retain a majority. This bodes ill for President Barack Obama's chances of getting any noticeably liberal nominee through the Senate next year.

Of the three names said to top Obama's short list, all of whom were on it last year when his first chance to pick a Justice came and were passed over in favor of now-Justice Sonia Sotomayor, two are women. Picking one of them could bring the Court's ratio of female Justices to an historic three, with Ruth Bader Ginsburg and Sotomayor...and all three will be liberal, unlike the first female Justice (Sandra Day O'Connor, now mercifully retired...although her legacy of decisions sadly remains). Even if Obama can't restore the ideological balance of a Court deliberately and systematically shoved to the right by two decades of Republican presidents and Senators irked by the more liberal decisions of the Warren and Burger Courts, he can still at least improve its gender diversity.

So let us offer a prayer that whatever God or gods there be grant him the wisdom to make the best possible choice for the public weal...and grant that nominee, whomever s/he is, the intestinal fortitude to make it through a nomination process during which the GOP and their allies among the pundits and tea-party loons activists are dead certain to unload on him/her with both barrels. And also pray for the same kind of strength to be granted Democratic Senators and Representatives running for re-election this fall, against whom any successful liberal nominee is equally certain to be used as a rhetorical bludgeon by opponents and their allies.

Comments

[banjoplayinnerd.livejournal.com]

Scatman Crothers? Aren't you thinking of Pigmeat Markham? He originated the "Here Comes The Judge" skit in burlesque, moved it to the Apollo and later performed it on Laugh-In.

As for Obama's pick, it depends on whether the nominee is subject to filibuster. If s/he is, any nominee is going to be problematic, simply because they were picked by Obama and have to face the Party Of No. (Losses in the House don't count; the House has nothing to do with judicial appointees.) If not, there will be a great deal of Sturm und Drang followed by certain confirmation.

It is remotely possible that the prospect of confirming a liberal judge to the Supreme Court will motivate the Democrats to turn out in larger numbers this fall to mitigate potential losses in the Senate. Hard to say at this point. Certainly the Republicans will use it as a way to raise money to "stem the tide of activist judges" (i.e., judges who don't legislate the way Republicans want them to).

[admnaismith.livejournal.com]

They'll do that anyway.

It's time to put some semblance of balance back on a court that has not had even one liberal on it since Brennan and Marshall retired almost two decades ago.

[pocketnaomi.livejournal.com]

What have you got against Ginsburg and Breyer?

[admnaismith.livejournal.com]

Nothing at all, they're good solid middle-of-the-roaders, just like Sotomeyer and Stevens. If we could have nine like them, who don't really let political partisanship influence their judicial opinions, the court would be pretty much work the way it's supposed to.

But when four people sit in the middle of a seesaw, and five more sit on the right end, with nobody at all on the left, it's not going to work the way it's supposed to.

[pocketnaomi.livejournal.com]

Okay, I see what you're saying. I think that Brennan felt as you do; he did not start out nearly as far to the left as he ended up. He was a good judge, and good judges seldom are all the way to one side of the other if they feel they can afford not to be -- it isn't the way judges are taught to think. Brennan may have eventually come to the bitter conclusion that he couldn't afford to think like a judge rather than a politician when the entire right wing of the court refused to do likewise. If so, I don't blame him for it; if anything, I think it showed courage and farsightedness, but I can also certainly see why he didn't much act as if he enjoyed his last several years on the Court.

Marshall was different. Marshall never did think primarily like a judge, and I mean no disrespect to a great man when I say that he wasn't "a good judge" in the sense I meant it above. He was one of the world's greatest advocates, and I almost wish he'd been left alone to do the job he was brilliant at, because as a Supreme Court Justice he usually seemed to vote either based on politics, common sense, or following along with the other Justices he trusted. All of those were likely to get him within a ballpark range of a sane decision most of the time, and on specific subjects he knew well, he wasn't afraid to break from all three methods and address the case itself. But that was rare -- not because he wasn't an amazing lawyer, but because he thought like a lawyer, not like a judge, and twenty-odd years on the Court plus the five or so he served as a circuit judge beforehand didn't really change his approach.

I really want to see at least five people sitting in the middle of that seesaw for a change, with the others, if there must be some, distributed roughly evenly toward the two ends. We might see the Court produce some decent case law again.

[redaxe.livejournal.com]

Justice O'Connor's record, while by no means liberal, isn't nearly as bad as it might have been. Certainly, I'd take her over any of Justices Roberts, Scalia, Alito, or that abomination of a so-called Justice, Thomas.

I hope President Obama selects a seriously qualified, more liberal than otherwise jurist, and lets the Republicans fall all over themselves lying about her, then stomps them on TV.

[pocketnaomi.livejournal.com]

O'Connor was a conservative who also saw the world through relatively unclouded glasses. She was aware her decisions affected real human beings, and cared more about that than about the conservative principles which got her nominated. I honor and respect her for that, and although I disagree with a lot of her decisions, as you say, I don't disagree with nearly as many of them as with the more recent justices to whom the label 'conservative' has been applied. I wish there were different terms; the one word doesn't seem to cover as many people as it's used for anymore.

[redaxe.livejournal.com]

I tend to use the term "right-winger" when I'm not being pejorative; "right-wingnut" or just "wingnut" when I am, which is, these days, too frequent and too frequently earned by the recipients.

[pocketnaomi.livejournal.com]

The wonderful thing about Stevens wasn't the liberal tendencies, it was the willingness to override his own political leanings in deference to the facts of the specific case he was deciding. I've never known of a Justice who was more attentive to the detail of the facts, which is why he had so many concur-in-part-and-dissent-in-part opinions, among a group of politicians interested in what they tend to call the big picture, that it was common for his colleagues to joke that the decision was 5-3-1, or 6-2-1. They never had to say who was the 1. It was always Stevens.

Liberal, I trust Obama to find. Liberal and smart, even. But I don't know whether there are any judges left who are remotely confirmable who still look with such care at the facts of the case under their nose rather than the political issue which led people to bring it to them. I will miss that about John Paul Stevens very much.

[osewalrus.livejournal.com]

Well, my reactions on judges are very mixed. And I generally dislike the "Liberal" v. "Conservative" moniker. It has little relevance for actual decisions other than a few headline issues like abortion. For example, Ginsberg is frequently wretched on issues I care about whereas I find myself in greater sympathy with Scalia on Administrative Law.

The problem for the last 30 years has been that Democrats choose "moderates" and Republicans chose committed ideologues. This is sadly in keeping with the fact that Republicans, much more so than Democrats, appear to have commitment to principles. The great tragedy is that Republicans are fanatically committed to the wrong principles, while Democrats cannot muster commitment to any principles. Or, as Yates put it: "The best are filled with indifference, while the worst are filled with passionate intensity."