What's In Store If Justice Stevens Retires?

Barring unforeseen circumstances, the next vacancy on the United States Supreme Court is likely to be Associate Justice John Paul Stevens. At age 89, Stevens is by far the oldest justice on the high court, and though he's not about to be pushed out, he has expressed a desire to retire. All things considered, this might be the best time (from Stevens's point of view) to leave the bench.

If you want to learn about Justice Stevens before proceeding, or refresh your memory, hop over to the right-hand side of the page, go down to Index, then scroll down to Justice John Paul Stevens.

In the event that Stevens does retire in the near future, president Obama may have to nominate a candidate to replace him prior to the November elections. This could turn out to be a true dilemma for Obama. It's unlikely that even with the current Senate, Obama's choice would go unvetted and slide through quickly, meaning the nomination might expire and have to be renewed when the new Congress is seated next year. The Senate is likely to be far more hostile then than now. So what does Obama do? He could appoint a liberal, but otherwise respected jurist to the position, and try to slip him (or her) through. He could roll the dice and nominate an ultra-liberal "living Constitutionalist," and take his chances with the Senate. He could nominate a moderate, perhaps Republican, candidate and hope he "grows in office" the way Justice Souter did. Or he could appoint a moderate who has a decent pro-business record and hope that nobody notices the leftist bent of his social views. Whoever he chooses, he's likely going to irritate some major segment of his own or the other party.

Obama's recent nomination of far left Goodwin Liu to the Ninth Circuit Court of Appeals indicates where Obama is willing to go on the lower courts, but that is probably not an indication of where he might head in a nomination as visible as the US Supreme Court. In addition, Obama has just succeeded in winning the health care vote only to find the backlash is immense. And he still has cap and tax and immigration to try to shove down our throats. It's hard to say if he also has the time for a lengthy and bloody battle over the high court.

My father was a bit of a gambler, and he loved a longshot. Like him, I'm going to swim against the tide to come up with my guess as to who the nominee will be. There's some ego involved as well, since I've been predicting this person as my front-runner for the second appointment before Sotomayor was nominated for the first vacancy. My choice for number one topping the list of potential nominees is former professor of law and current Obama regulatory czar Cass Sunstein. Despite a major political gaffe shortly after his appointment to head the White House Office of Information and Regulatory Affairs, Sunstein has stayed below the radar, and he is quite capable of arguing that his role as a political operative is substantially different from a role on the Supreme Court.

I have many reasons for picking Sunstein as the likely successor, not the least of which is that he is in many ways a younger version of Stevens. This would eliminate much of the early rancorous fighting over his nomination because it wouldn't mean a radical change in the court's direction either to the left or the right. Both sides might be relieved to simply have their say, then take the Senate vote, and get back to the business of dismantling the Constitution in the political branches.

Like Stevens, Sunstein is a legal minimalist. I find this trait in Stevens irritating as I do with Sunstein, but it is certainly not a ground for quashing his nomination. Minimalists prefer reaching results based on extremely narrow grounds rather than broad legal principles. That is a good stance for every court except the Supreme Court, which often has to set national standards for thirteen separate and often warring federal appellate districts.

Failure to state a broad principle in a major decision leaves thirteen districts free to focus on the one aspect of the case for purposes of reaching their previous conclusion by avoiding that single issue. This results in re-litigating similar cases at the highest levels multiple times, as well as ongoing confusion among the various districts. Once a case has been accepted by the Supreme Court, it should be decided on all the issues in the case, thereby setting a coherent national standard.

He has a view that irritates political conservatives, but shouldn't. He believes in judicial restraint as it relates to the two political branches. He believes that when the Constitution is silent on an issue, or alternatively does not specifically forbid political action, then all due deference should be given to the political branches with the courts refusing to substitute their wisdom for that of the executives and legislatures. This would often lead him, like Stevens, to support the ongoing expansion of government. Like it or not, that deference is precisely what the Founders intended. It is not the job of the courts to determine how big or how small government should be (within Constitutional constraints, of course). That is the job of the people, and their elected representatives.

When it comes to the war-making power, Sunstein was consistent in his support for the Bush administration--not because he liked Bush particularly, but because he agreed with the arguments of Bush's Attorney General, particularly as to wartime detainees. Sunstein excoriated the Supreme Court for its decision in Hamdan, which for the first time granted habeas corpus rights to prisoners of war. He never wavered from his belief that military tribunals were the proper forum for trials of terrorists who were caught in a war zone. When it comes to the inherent powers of the president to conduct war, Sunstein sounds much more like John Yoo than like Eric Holder.

Sunstein is a great debater. He held two professorships at the University of Chicago simultaneously. He was both a professor of law and a professor of political science. He once debated himself, arguing as the law professor that the political science professor was making proposals that exceeded the constitutional authority granted to the political branches and damaged the sovereignty of the several states. He was also heavily influenced by the University of Chicago school of economics, which most conservatives should applaud. Unfortunately, he takes the Harvard/Yale stance on free speech, contending that Holmes's "free marketplace of ideas" is not adequate to address the concept that the government must actively promote specifically free debate on politics and citizenship (the Brandeis view). This does not bode well for future overreaching by the FCC and the so-called "fairness doctrine."

Sunstein is certainly no great fan of strict construction, original wording, original meaning, and natural law. But he is also not a free rein advocate of the "living Constitution." He may interpret portions of the Constitution differently from Justices Alito, Roberts, Thomas, and Scalia, but it will be on those narrow grounds I mentioned earlier. He is not a judicial activist who believes that the Constitution is an outmoded document that the courts and the political branches can ignore with impunity. He has quietly criticized Holder Justice Department actions regarding civil trials for terrorists, overweaning regulatory bodies (Sunstein is an expert on administrative law), and presidential war-making powers (including interrogation techniques).

If Obama wants the best he can get without creating a determined Senate opposition, Sunstein would be the one. The angry left and the angry right will oppose him, but his legal/judicial qualifications for the office are excellent, and his views of the powers of the high court are if anything, to the right of Stevens's. Sunstein's elevation to the Supreme Court would effect only imperceptible changes in the court's current makeup, and that's a good thing for both sides, given the very hostile political climate in America today.

Since Sunstein heads my list, and nobody else's, I should at least mention who the apparent front-runners are. They are US Seventh District Appellate Court Judge Diane Wood, Solicitor General Elena Kagan, and DC District Appellate Court Judge Merrick Garland. I don't list them in any particular order, nor do I have any idea which of them would be most likely to be confirmed without a fight. None of the potential candidates is a doctrinaire leftist like Ruth Bader Ginsburg or a judicial idiot like Sonia Sotomayor.

Judge Wood is a strong supporter of abortion and illegal immigrant rights, but her decisions rarely reflect her political views. At 59, she is the oldest of the three leaders, and Obama is looking for someone to live long enough to preserve his "legacy" on the Supreme Court. Her nomination would raise some angry invective from the anti-abortion, anti-illegal immigrant crowd, but her judicial consistency would likely prevent her nomination from being trashed. Obama and Wood were both law instructors at the University of Chicago at the same time, and Obama is said to have a personal fondness for his old friend.

Solicitor General Kagan is the youngest of the three. At 49, she would likely spend many years on the high court. Kagan is known for being very even-handed, and that will not sit well with Obama's left wing. She was a well-known moderate as an adviser in the Clinton White House. As dean of Harvard Law, she made a conscientious effort to balance the teaching staff with conservatives. She has never sat on the bench, and therefore has no discernible judicial paper-trail to attack.

Judge Garland is known to be a conciliatory type, who is not afraid to take a stand, usually on the liberal side, but he is not a radical by any means. He fits the traditional mode of replacing a male judge with another male judge, which would also allow Obama to insist on nominating a woman if he actually gets a third shot at changing the makeup of the Supreme Court.

One other name is being bandied about, but Obama would do it only if his strategy is ultimately to wear out the Republicans in a full-blown fight this time in order to make them look like consistent bullies the next time. Obama, the first post-racial president, could nominate another of his favorite people, Yale Law Dean Harold Koh. Koh would be the first Asian-American on the Supreme Court, and Obama could really pull out all the "racist" stops, clouding the fact that Koh is a far-left radical legal activist. Koh proudly proclaims his belief in interpreting American law by citing and admiring international law as part of his legal analysis.

He has stated in a legal brief to the Connecticut Supreme Court that same-sex marriage is clearly and unequivocally a federal constitutional right, and that any state legislation forbidding it is a violation of the equal rights of gays. Koh is an unrepentant believer in the living Constitution view of law, and a proud supporter of judicial supremacy over the other two branches. Frankly, I don't think even Obama would make this mistake during his current unpopularity.