The retirement of Justice Stevens: In Plain English

What a week!  While many thought the past few days would be quiet ones on the SCOTUS front – we weren’t expecting opinions, the orders were few, and there were no arguments – things heated up quickly with the much-anticipated announcement by Justice Stevens that he would retire over the summer.  Those of us reading the SCOTUS tea leaves have predicted for several months now that Justice Stevens was likely to retire, in part because he had not hired law clerks for next Term, in part because some public statements he had made seemed to support that prediction.

But while SCOTUS watchers knew this was probably coming (and, look, the man is turning ninety this week – the world knew it was coming), we were still sad to see Justice Stevens go.  The Justice with the gentle manner and sparkling eyes has served almost as long as any other Justice in history, and he has been a part of countless landmark cases. 

Of course, whenever there’s a retirement (which few Justices confirm ahead of time), there’s also a sense of excitement, no matter how esteemed and beloved the retiring Justice.  The water cooler talk starts in earnest with speculation about who will be appointed to fill the empty seat. Given presidential politics, we can be fairly sure that it won’t be Ken Starr, who stated a couple of weeks ago that his only professional regret was not serving on the Court.  But polls tell us that the American public would approve of the appointment of a gay Justice.  Obama is unlikely to tip his hand about his short list, but that doesn’t stop pundits from here, there, and everywhere from offering their own short lists of likely candidates.

So let’s talk about what the President is likely considering as he narrows down his choices.  First on many people’s lists – and perhaps the President’s – is diversity.  Justice O’Connor has said that “it wouldn’t be all bad” to have yet another woman on the Court. There has never been an Asian-American Justice, and the Court currently has only one African-American Justice and one Latina Justice.  There has never been a Justice with a physical disability (although several Justices have become quite ill while on the Court).  Why do many think that diversity on the Court is so important?  After all, Justice O’Connor once said that a wise woman and a wise man would come to the same decision.  Well, some believe that people from different backgrounds bring diverse life experiences to the bench, all the better to inform their judging.  Others feel that the Court should represent and reflect the diversity of the United States, in part to engender confidence in the Court’s workings, in part to establish role models for American youth of all stripes.  And don’t forget that diversity can mean many things – Chief Justice Roberts, for example, has commented on the value of a Court with Justices of different professional backgrounds.

Age is almost certainly another important factor in the President’s calculation.  Supreme Court Justices hold their jobs for life (actually, the Constitution says “during good behavior,” which essentially means that Justices have life tenure unless they are impeached).  That’s important because every President considers the appointment of a Justice to be part of his legacy, as many commented last week when reflecting upon President Ford’s nomination of Justice Stevens.  It’s also important because a younger Justice will serve longer, which is critical if part of a President’s agenda is to foster political change on the Court.

How about ideology?  To some Presidents, ideology is extremely important.  This goes along with the legacy idea:  a President wants to appoint a Justice whom he perceives to share his views, one who will take the Court in a prescribed direction.  The problem with the ideology objective is that once a Justice is appointed, she owes no loyalty to the President (and in fact would be misguided if she thought she did). What’s more, a Justice who serves for many years might change her views over time, just as ordinary people often do. Take Justice Blackmun:  President Nixon appointed him in 1970 thinking that he’d promote a conservative agenda; instead, Blackmun authored Roe v. Wade and stated publicly that the death penalty was cruel and unusual punishment.  Ditto with Chief Justice Warren, known for trailblazing the path of individual rights:  he was appointed by Republican President Eisenhower (who later said that the choice of Warren was “the biggest damn fool mistake [he] ever made”).

A President’s number one criterion in this day and age?  Confirmability.  The Constitution states that a President’s choice is subject to the “advice and consent” of the Senate.  That’s why we see these seemingly endless meetings between Senators and the nominee (remember Justice Sotomayor making her rounds with a broken ankle?) and the days-long confirmation hearings in which Senators ask the nominee difficult questions in an attempt to determine her confirmability.  No President wants to be “Borked,” or have his choice’s character and judicial temperament disparaged and destroyed (as in the case of Judge Bork), and no President wants to have his choice exposed as lacking in experience or smarts (as in the recent case of Harriet Miers).  In fact, no President wants much of a fight at all – he’d like to see his nominee sail through confirmation, as Justice O’Connor did with a unanimous vote in 1981.  But the days of unanimity are over, at least for now, and so a President must choose someone who is less, rather than more, controversial.  That – and the fact that the Republicans have threatened to filibuster an unpalatable nominee – may mean that Obama’s choice will be more moderate than liberal, or perhaps lacking in a judicial record.

Once we have a nominee, I’ll explain the confirmation process in detail, including the scrutiny that accompanies a nomination and the nature of the proceedings.  Until then, enjoy the water cooler talk, and tip your hat to Justice Stevens for almost thirty-five years of dedicated service on the Supreme Court.