Adam Liptak at The New York Times:
Justice John Paul Stevens, who announced his resignation from the Supreme Court on Friday after 34 years, may be the last justice from a time when ability and independence, rather than perceived ideology, were viewed as the crucial qualifications for a seat on the court. He was nominated by President Gerald R. Ford in 1975, who said all he wanted was “the finest legal mind I could find.”
Justice Stevens was confirmed 19 days after his nomination. Though Roe v. Wade had been decided two years earlier, he was asked no questions about the decision, which identified a constitutional right to abortion. His confirmation hearings were the last not to be broadcast live on television.
Justice Stevens, a Republican, gradually became the leader of the court’s liberal wing, and his majority opinions limited the use of the death penalty and expanded the rights of prisoners held at Guantánamo Bay, Cuba. Over time, he became increasingly skeptical of claims of government power, and he often voted in favor of criminal defendants, prisoners and people claiming to have been subjected to unlawful discrimination.
Closing one era and opening another, Justice John Paul Stevens notified President Obama on Friday that he will retire from the Court when the current Term ends, probably late in June. Stevens made his decision public eleven days before he reached his ninetieth birthday, and about two years short of a date on which he would have become the longest serving justice in history. Justice Stevens’ letter to the president is here.
Stevens chose to make his retirement effective at the end of the Term, rather than waiting until a successor has been named by the president and approved by the Senate. That choice puts much heavier pressure on both the president and the Democratic leaders of the Senate, because they will not have time to stretch out the process and have a new justice in place when the Court returns for its next term on October 4.
With Friday’s development, the Court was poised for a generational shift, ending its last remaining link to the days of liberal dominance of the tribunal, and, at the same time, removing from the bench the most committed liberal remaining among the nine.
Stevens, who began his career as a mostly unpredictable centrist on a liberal Court, migrated to the Court’s left over the years as new justices moved the Court noticeably to the right. Stevens has been on the Court since 1975, arriving to serve with such liberal giants as Justices William J. Brennan and Thurgood Marshall.
It has been rumored for weeks that this would be Stevens’ last Term as a justice, but he had largely kept his own counsel until recently, when he began discussing publicly the possibility that he would soon retire. He had made it clear in recent interviews with news reporters that he intended to leave the Court while President Obama was in the White House, and that gave him the option of continuing to serve for two-plus more years.
It is almost universally expected that Republicans in the Senate, although a minority, will announce a sustained effort to prevent Senate approval of any nominee that President Obama sends up for confirmation. Sensing that they have a chance of increasing their numbers in the Senate, the GOP minority there may even make an effort to delay the coming confirmation process until after a new election is held on November 2.
Stevens’ departure from the high court will mark the end of an era: he is the last justice to have served in World War II, lived through Prohibition, and was around for the start of the Great Depression.
In terms of the Supreme Court’s stark ideological divisions, it’s unlikely that Stevens’ retirement will change the makeup of the bench — despite having been nominated by a Republican president (Ford), Stevens is one of the high court’s most reliably liberal votes. President Obama, who Stevens praised in recent interviews, will almost certainly replace Stevens with another progressive voice, keeping the center-left bloc with four votes (joining Ginsburg, Breyer, and Sotomayor).
Paul Mirengoff at Powerline:
The announcement is hardly a surprise, and we (among many others) have been speculating for months about who will replace him.
The three names one hears most often are Elena Kagan (currently the Solicitor General) and appellate court judges Diana Wood (7th Circuit) and Merrick Garland (D.C. Circuit). Kagan is considered the most likely nominee; Garland, I believe, would be the best of the three.
Daniel Foster at NRO:
The White House has said they will make an announcement ” in the coming weeks,” from a list that includes about 10 names. There will surely be some leftovers from the Sotomayor short-list. So beginning, roughly, with the center-most candidate and moving left, that list likely includes:
Merrick Garland – a former federal prosecutor and current D.C. Circuit appeals judge. A Clinton appointee, Garland is well-liked by Democrats and even some Republicans in the Senate.
Elena Kagan – The first-female Solicitor General and probably first-runner-up for the Sotomayor seat, Kagan has a record of the kind of cagey jurisprudence that is ideal for a tough confirmation battle. She is well-respected by just about everybody on both sides, but lacks the paper trail that would reveal just how far to the left she’d sit.
Diane Wood – Another Clinton appointee, considered the heaviest liberal counterweight to the conservative Chicago Seventh Circuit Court of Appeals dominated by Richard A. Posner. Wood was a colleague of President Obama at the University of Chicago Law School.
Pamela Karlan – A professor at Stanford Law School, Karlan is a longshot once was described by the New York Times as a “snarky. . . Antonin Scalia for the left.” Karlan is openly gay, and an outspoken liberal.
“Would I like to be on the Supreme Court?” Ms. Karlan asked once asked during a Stanford graduation address. “You bet I would. But not enough to have trimmed my sails for half a lifetime.”
A longer list would include some Obama DOJ officials / liberal legal intellectuals like Harold Koh and Cass Sunstein. And the administration reportedly vetted a number of politicians for the Sotomayor spot that could be reconsidered here, including Homeland Security Secretary Janet Napolitano (“the system worked”), Sens. Byron Dorgan (D., N.D.) and Claire McCaskill (D., Mo.), and Michigan Governor Jennifer Granholm (D.)
My two cents: It’s Kagan or somebody nobody is even talking about.
When President Obama chose Sonia Sotomayor to replace David Souter, that had very little effect on the ideological balance of the Court, because Sotomayor was highly likely to vote the way Souter did in most cases. By stark contrast, replacing Stevens with Kagan (or, far less likely, with Sunstein) would shift the Court substantially to the Right on a litany of key issues (at least as much as the shift accomplished by George Bush’s selection of the right-wing ideologue Sam Alito to replace the more moderate Sandra Day O’Connor). Just click on the links in the last paragraph here, detailing some of Kagan’s “centrist” (i.e., highly conservative) positions on executive power, civil liberties and Terrorism for a sense of how far to the Right she would be as compared to Stevens.
Over the past decade, the Court has issued numerous 5-4 decisions which placed at least some minimal constraints on executive power. Stevens was not merely in the majority in those cases, but was the intellectual leader justifying those limits. And he often went further in demanding due process and accountability for the Executive than even the “liberal” wing in general was willing to go — as exemplified by his joining Justice Scalia’s dissent in Hamdi, where the two unlikely allies both argued that the President could never detain U.S. citizens as “enemy combatants,” but instead must charge them with a crime (e.g., treason) and obtain a conviction in order to imprison them.
As Alliance for Justice President Nan Aron put it today: Stevens was a “master tactician” who “emerged as one of the Court’s most vocal and eloquent spokespersons for individual liberties, separation of powers, and equal access to justice.” Given Stevens’ status as the leader of the Liberal wing, The Nation‘s Ari Melber said today: “With Justice Stevens retiring, it will take a nominee like Harold Koh just to maintain the Court’s status quo.”
The danger that we won’t have such a status-quo-maintaining selection is three-fold: (1) Kagan, from her time at Harvard, is renowned for accommodating and incorporating conservative views, the kind of “post-ideological” attribute Obama finds so attractive; (2) for both political and substantive reasons, the Obama White House tends to avoid (with a few exceptions) any appointees to vital posts who are viewed as “liberal” or friendly to the Left; the temptation to avoid that kind of nominee heading into the 2010 midterm elections will be substantial (indeed, The New York Times‘ Peter Baker wrote last month of the candidates he said would be favored by the Left: “insiders doubt Mr. Obama would pick any of them now“); and (3) Kagan has already proven herself to be a steadfast Obama loyalist with her work as his Solicitor General, and the desire to have on the Court someone who has demonstrated fealty to Obama’s broad claims of executive authority is likely to be great.
On to the next one, Mr. Stupak.
Rep. Bart Stupak (D-MI) plans to announce his retirement today, Democrats briefed on his decision said. Stupak, the leader of a pro-life faction within his party, had received death threats and was under intense political pressure after he agreed to support the Democratic health care reform legislation even though pro-life groups insisted that it would allow federal funds to be used for abortion.
Stupak negotiated a compromise with the White House, which resulted in President Obama’s issuing of an executive order clarifying the executive branch’s view of the subject. For that, Stupak was called a traitor to the pro-life cause. Stupak has represented Michigan’s first congressional district for 18 years. He will make public his decision at a press conference later today.
David Dayen at Firedoglake:
If you’re a politician not inclined to deliver under “intense political pressure,” you have no business being a politician. And if death threats were a factor in resigning, there pretty much wouldn’t be a member of the Democratic caucus left. Stupak sought the spotlight. He wanted to lead the pro-life Caucus and hijack the health care debate. He refused to quit even when he essentially won by getting the Nelson compromise, which functionally did about everything he wanted. He made the debate a living hell and went out of his way to punish half the US population. And in the end, everybody hated him, left and right. Well played.
Stupak’s district is swingy, but a lot of the top legislators in the area are Democrats. Right now, Connie Saltonstall is in the race, but I would expect a state legislator to get in. This Swing State diary has some potential names, including Senate Minority Leader Mike Prusi and State Rep. Mike Lahti. It sounds like Prusi would be the less conservative and more winnable option – and he happens to be pro-choice, which would be an interesting turnabout for a seat where Stupak said he was merely voting his district.
I can’t shed much of a tear for Bart Stupak. He put himself in the spotlight, then realized he didn’t like it.
UPDATE: Here’s Stupak’s full resignation statement to constituents. He pulled out the “spend more time with my family” form letter.
But Stupak isn’t alone. If Sen. Ben Nelson was up for reelection this year, there’s a good chance he’d be retiring too. The two of them took the most damage during health-care reform, and for the same reason: They took a hostage and then accepted the ransom. And while that strategy might have worked in the past, it’s proven a disaster.
There were no end of legislators who didn’t like the bill — or didn’t want to vote for it — for one reason or another. But there were a very small group who used their ambivalence to elevate their public profile and strengthen their bargaining position. Nelson became a frequent guest on the Sunday shows, explaining how the bill wasn’t good enough and he wasn’t sure he could vote for it. He waited until the last minute, and then used all the anti-bill credibility he’d built to cut the best deal for his state: Free Medicaid expansion, in perpetuity.
The only problem was that his state didn’t care about Medicaid. Nelson had helped convince them this wasn’t a good bill, and now he was flip-flopping to support the monstrosity. Stupak followed a similar path: He spent months threatening to kill the thing and telling anyone who was listening that it would lead to taxpayer-funded abortions, and then flipped to support it. These flips were not necessarily unprincipled. Both Nelson and Stupak got real policy concessions. But they were unpopular. The left hated them for their preening ambivalence, the right for their eventual support.
Compare Nelson and Stupak to people such as Mark Warner or Brad Ellsworth, both of whom are moderate Democrats who had serious concerns about the bill, but who spent their time quietly getting those concerns addressed rather than using them to get TV bookings in advance of a high-profile deal. Nelson and Stupak made themselves into targets for both the left and the right, and ended the process with lots of notoriety but even more new enemies. Warner and Ellsworth haven’t suffered from the same backlash. The old model in which moderate Democrats justify their vote for a bill by talking trash about it until they get bought off doesn’t work in an environment where the media and the political opposition is waiting to pounce on the buy-off.
Stupak’s press conference statement was heavy on the Demcare cheerleading, silent on his pro-life views.
That was left to his wife, who introduced him by stating: “His word is his bond.”
A bond of Silly Putty.
When you play a pivotal role in monumentally important legislation, you’d better face the public and justify what you did with the power they trusted you with. If you’re not up for that, we should read it as an admission that you did the wrong thing — without even the nerve to come out and say I’m sorry, I was wrong.