After Justice Stevens?

Illustration for article titled After Justice Stevens?

It may seem hard to believe now, but when Justice Stevens appeared for the opening day of his Supreme Court confirmation hearing in 1975, the first issue he felt compelled to address was his health.  Stevens had undergone heart bypass surgery the year before his confirmation.  But by the first day of the hearing, Stevens reported to the Committee that he had resumed one of his favorite pastimes - flying an airplane.  And he as he testified at his hearing, he'd returned to work eight weeks after his surgery and was deemed by physicians to be in "perfect health."


                Of course, Justice Stevens continued to enjoy excellent health during his 34 years on the Court, where at age 89 he is the oldest sitting justice.  This should have come as no surprise.  Back in 1975 he reassured the Senate Judiciary Committee that his family "has a history of longevity."  He noted then that his mother was "94 years of age, and she is still alive.  My father" he continued "died about a week before his 88th birthday.  Their parents had similar histories."  He leaves the Court still fit enough to play tennis regularly, and strong enough of will and mind that his loss will be keenly felt by those who are concerned about the ideological imbalance of the current Court.   

                Until the rightward tilt of the Court (that began in earnest under Chief Justice Rehnquist and has intensified under Chief Justice Roberts), Stevens was long considered a moderate.  He was an anti-trust lawyer in Chicago and then served as judge on the 7th Circuit Court of Appeals before he was selected by President Gerald Ford to fill the seat vacated by Justice William O. Douglass.  Sartorially conspicuous because of his ubiquitous bow-ties and well-known for his friendly demeanor and hard-work ethic, Stevens didn't become a high-profile trailblazer on the Court until the presidency of President George W. Bush, beginning with his dissent in Bush v. Gore, in which Stevens predicted that the majority decision would shake "the nation's confidence in the judge as the impartial arbiter of the law."

Later he participated in a series of decisions striking down the Bush Administration's efforts to deny basic due process rights to prisoner held on Guantanamo Bay, and authored the most important of those decisions, Hamdan v. Rumsfeld.  Despite these opinions, Justice Stevens remained a moderate.  As Justice Stevens noted, he may not have moved further to left so much as the Court has lurched hard toward the right since 1975.

                No sooner has Justice Stevens transmitted his resignation to the President, than short lists of potential replacements have abounded on blogs and websites.  The stakes - in terms of the Court's ideological balance - are not particularly high.  President Obama will replace a moderate with a moderate.  But in other ways, the opportunity to appoint a new justice to the Court is laden with significance for the future of the Court.  It's a bit depressing to see the same names batted about that surfaced last year after Justice Souter's resignation - Solicitor General Elena Kagan, Michigan Governor Jennifer Granholm, federal court of appeals judges Diane Wood and Merrick Garland.   

It's not that each of these candidates aren't qualified to serve on the Court.  But it seems so small-minded to rush forward thinking about replacements without actually taking stock of what's missing from the current Court , and how President Obama can use this appointment to enhance the quality of the Court. The most important qualities may not be the ones political bookmakers focus on.   For example, one of the most important qualities that Justice Sonia Sotomayor brought to the Court for example had nothing to do with her being a "wise Latina."  It was Justice Sotomayor's experience as a trial judge - an experience lacking on a Court otherwise comprised entirely of former federal appellate judges - that thus far has been among her most unique contributions to the Court.  If you think it doesn't matter to have a justice on the Court who knows something about trial court practice, check out Sotomayor's line of questioning in Skilling v. Texas, the case brought by the former Enron executive in which he argues that he was convicted by a biased jury.   

                So rather than suggest names of potential nominees, I want to compile a short list of those areas of experiences or qualities lacking among current justices on the Court.  I suggest that President Obama consider these qualities when selecting a replacement for Justice Stevens:

1) Former criminal defense trial lawyers - Thurgood Marshall may be the last Supreme Court justice who regularly defended criminal defendants at trial. A large percentage of the cases heard by the Court (and an even larger percentage of those the Court declines to hear each year) are criminal matters, raising issues that go directly to the legitimacy and fairness of our justice system and the basic constitutional rights of the citizenry. Although the Court has two former prosecutors - Justice Alito was a federal prosecutor and Justice Sotomayor was a New York City Assistant District Attorney - the Court needs the experience and knowledge that an exceptional criminal defense lawyer could bring to the bench. (In this regard, the inclusion by Emily Bazelon and Dahlia Lithwick at Slate of Bryan Stevenson  on their shortlist is right on target


2) State Court judges - Justices O'Connor and Souter were the last two justices to have served as state court judges. Many of the cases heard by the Court emanate from proceedings in state courts. In several cases, members of the Court have demonstrated a surprising tin ear about the pressures that face state court judges (see Republican Party of Minnesota v. White, and the dissent in Caperton v. Massey). President Obama should look among the most noteworthy former or current State Supreme Court justices to fill Stevens' seat. Last year Leah Ward Sears, retired Chief Justice of the Georgia Supreme Court appeared on many Supreme Court shortlists, and her name should be seriously considered again).

3) Justice Stevens was the only Supreme Court justice to have served in the active military. Recently, Stevens has talked openly about how his thinking about law has been shaped by his experiences working as a cryptographer during World War II.  President Obama has nominated a pair of veterans to the 4th Circuit Court of Appeals recently, so the White House may already have veteran status on their radar. 


4) A serious liberal thinker and scholar. There are no liberals are the Court - save, perhaps, Justice Ginsburg. There are however, several true conservatives on the Court. As a result, the decisions of the Court - even the dissents — are overwhelmingly center-right decisions. The Court's decision-making would be enhanced by including the perspectives and thinking of a lawyer on the ideological left. The view that the ideal judicial candidate is a "moderate" has become a kind of nomination article of faith. But the best judicial thinking and analysis is created by rigorous examination of legal problems by our best legal minds from across the spectrum.

5) An African American. Without question, the Court has one African American - Justice Clarence Thomas. But Thomas' position on the Court should not become a kind of quota - a ceiling for potential black justices. The dearth of blacks on most Supreme Court shortlists is clearly influenced by the fact that Thomas sits in "the black seat." Moreover, that Thomas' views are at odds with the vast majority of the black community - and maybe even the white community -makes his status as "the black justice" dubious as a symbol of inclusion. Racial diversity, like gender diversity, continues to be important. And the fact that there's one black justice on the Court (and there's been one on the Court for the last 40 years) doesn't diminish its importance.


6) A Protestant. I know it's impolitic to say it, but for the first time in its history a majority of the justices on the Court are Catholic. Justice Stevens will be the last Protestant to sit on the Supreme Court.Our religious upbringing does shape our views of law, morality and justice. We may not know precisely how those lessons will play out, but we shouldn't pretend that modest religious diversity (there are no Muslims on atheists on anyone's short list) would benefit the Court. At the very least, it would promote the public's confidence in the Court to pursue greater religious diversity among the Court's justices.

As President Obama prepares to take on the difficult work of choosing a nominee to fill Justice Stevens' seat, he should take an expansive view of what the Court needs and a clear-eyed look at what the Court lacks, rather than duplicate the range of experiences that are already part of the Court's make-up.