Even Stevens

Another Liberal Pick for Obama But Not an Easy One

When retired Justice Souter decided to leave the Supreme Court last year, everyone assumed President Obama would not face a big political fight in naming his replacement. While no one doubted Obama would pick a liberal jurist, Souter was also a liberal. Thus, the Court’s all-important ideological balance was not at stake.

The Senate confirmed Obama’s pick to replace Souter, federal judge Sonia Sotomayor, and did so relatively quickly. Yet her confirmation process led to a surprisingly wide and vociferous amount of criticism. Although the bulk of her decisions demonstrated no worse than left of center jurisprudence, conservatives seized upon one decision overturned by the Supreme Court and several out-of-context provocative remarks made at speaking engagements to present Sotomayor as a wild eyed, far left liberal, out to disembowel the Constitution.

Her recommendation by the Senate Judiciary Committee received only one Republican vote. Her final confirmation by the full Senate (68 to 31) garnered only nine Republican votes. If Obama would not give them an uber-liberal candidate, the GOP was determined to spin that candidate to show how “dangerous” the new President could be.

What is more, all this protest came when Obama’s approval ratings were high. All came before healthcare reform legislation drove Republican Congressional leaders into fits of apoplectic dissent and caused Senator John McCain of Arizona to declare the President could expect nothing but opposition for the rest of this year.

Thus, one can only wonder what difficulties Obama may face in naming an acceptable replacement for Justice John Paul Stevens, the Court’s oldest member, who announced his retirement last Friday. Like Souter, Stevens is unquestionably liberal, so an Obama pick will not shift the Court’s balance. Nonetheless, the task before Obama is fraught with difficulties.

Announcing what he would look for in a nominee, Obama declared, “I'll seek someone in the coming weeks with . . . an independent mind, a record of excellence and integrity, a fierce dedication to the rule of law and a keen understanding of how the law affects the daily lives of the American people. It will also be someone who, like Justice Stevens, knows that in democracy powerful interests must not be allowed to drown out the voices of ordinary citizens.”

Several of those qualities are fighting words for conservatives. Senate Minority Leader Mitch McConnell of Kentucky has already warned, “Americans can expect Senate Republicans to make a sustained and vigorous case for judicial restraint and the fundamental importance of an evenhanded reading of the law.”

Presumably, McConnell is seeking to curb judicial activism in the manner practiced by the liberal Warren Court of yesteryear, as opposed to . . . oh, say . . . the conservative Roberts Court of today. Conservatives continue to deem judicial activism a uniquely liberal tendency. Their claims carry less and less weight in light of a string of Supreme Court decisions over the past decade but they make them just as loudly and assertively.

In looking for qualities that Obama should continue in a replacement Justice, many have mentioned that Stevens is liberal, that he is the only former veteran currently serving on the Court, and that he is its only remaining Protestant. Yet, as the Washington Post’s Harold Meyerson points out, these factors pale in comparison to Steven’s role as the “lead opposition to the galloping judicial overreach of the Court’s conservatives.”

In many important cases – perhaps best known are Bush v. Gore and, more recently, Citizens United v. Federal Election Commission – Stevens’s scholarly but blistering dissents have been as noteworthy as the Court’s majority opinion.

Susan Estrich, a prominent Los Angeles attorney who clerked for Stevens in the late 1970s relates a recent conservation she had with her old boss in which she noted he seemed to have become both more liberal and more intransigent in forging compromises/alliances over his tenure. She asked him why he had changed. Stevens wearily replied he had not changed at all – the Court had changed.

What a replacement for Stevens really needs is not necessarily a loyal liberal voice so much as the intimidating intellect and prolific writing skills that Stevens always embodied. Someone who can conceivably forge coalitions with the liberal Justices as well as Justice Kennedy, the Court’s swing vote, to stand against Chief Justice Roberts and the conservative junta of Justices Scalia, Alito, and Thomas.

Yet that requirement may be tough to meet in a world where conservatives have redefined moderates as the new progressives. When Republican Senator Orrin Hatch of Utah declares, “I have hopes that President Obama will at least try to appoint somebody who will get a huge bipartisan vote,” that is conservative code for “no liberals need apply.”

If Obama is truly interested in appeasing Republicans after healthcare reform, this mandate cuts out a number of the most intellectually brilliant possibilities to replace Stevens, such as Stephen Carter, Jonathan Turley, Harold Koh, Charles Ogletree, Leah Ward Sears, Laurence Tribe, and Cass Sunstein. Although the White House strongly denies it, the conventional wisdom among pundits is that Obama is already down to a “B List” of three, consisting of U.S. Solicitor General Elena Kagan as well as federal judges Diane Wood and Merrick Garland.

Court watchers have long guessed the Obama Administration is grooming Kagan as an eventual nominee. The two most likely objections to be raised about her are her complete lack of judicial experience – although some, including Obama it is said, see this as more advantage than liability – and her sympathy towards gays serving in the military. On the other hand, the White House already knows she can pass a Senate confirmation. The thirty-one Republican Senators who opposed her for Solicitor General are no more than those who voted against Justice Sotomayor.

Everyone agrees Wood would face the most contentious confirmation hearings. As the National Review declares, “No judge . . . is more extreme than Wood on abortion.” Two of her rulings have been sufficiently defiant of any abortion restrictions as reasonable to earn her crushing overturns from the Supreme Court. Conservatives are sure to use this to brand Wood an activist judge, much as they did with Sotomayor. On the plus side, Wood is in harmony with Obama on many important issues and she is acceptable to his liberal base.

Garland is the surprising locus in this particular triangle. Respected and liked by all, his personality is nonetheless somewhat unassuming and even bland. Most classify him as a moderate versus a liberal in his jurisprudence, making him the popular choice among Republicans. Many see this as the most likely reason for his sudden rise to prominence among the candidates. However, Obama’s liberal base might revolt at his selection. Replacing a solid liberal like Stevens with a moderate strikes them as still another movement of the Court to the right, albeit a minor twitch.

Of course, much of what analysts are saying about Garland today was applied to Stevens himself when former President Ford nominated him. After the controversy of his pardon for Richard Nixon, Ford was desperate for a respected but inconspicuous nominee to buoy his approval ratings or at least halt their sinking.

Obama has been throwing his share of bones to Republicans of late but always on his own terms. What is more, he is more likely to risk a short-term political fight in an already hostile environment over something with as lasting an impact to his legacy as a Supreme Court pick. I expect Garland will be held in reserve and offered only if Democratic Senators prove too reticent to risk their election chances over further Republican charges of being “out of touch” with voters.

Obama may even dare to reach back up to his “A List” of candidates in order to assure a strong intellect/personality to match liberal judicial views. Given Steven’s important role on the Court, this could end up of paramount importance. Whatever Obama’s final decision, rather than a slam-dunk it seems replacing a liberal with a liberal proves a thorny problem when it comes to Supreme Court Justices – even Stevens.