Justice Stevens' Replacement

While there are certainly other things going on in the political world right now, many of them more important in terms of immediacy and life-or-death-type gravity, the announcement of the retirement of Supreme Court Justice John Paul Stevens has dominated the political news of the last week, for obvious reasons. Political elections happen on a regular basis, and they’re a well-understood phenomenon, but Supreme Court nominations are a different animal. Though elections are crucial to the tenor of our democracy, of course, it’s nevertheless a rare election in which the balance of power swings drastically one way or the other. But a SCOTUS nomination is for life, and can – no, more like nearly always does – have a profound effect on the lens through which law is viewed, and more importantly applied, in the entire country for decades to come.

I won’t rehash Stevens’ tenure on the court, or how the court has changed around him, except to say that what many pundits have already noted (that Stevens, though a moderate Republican, has become perhaps the most liberal justice on today’s SCOTUS due to the appointment of successively more-conservative replacements to retiring Justices) is quite accurate. For an excellent run-down of how the court (and Stevens) have changed since his ascension to the nation’s highest court, check out Rachel Maddow’s analysis.

My intent is not to repeat such thorough analyses but to try to figure out what might be in store for the nomination process. And I’m not even going to go into specifically who the potential nominees might be; people left over from the Sotomayor nomination, people who are long-time Obama allies (Deval Patrick, etc)…that’s a guessing game I’m nearly certain to be wrong about, just like everyone else is. And in truth, it probably doesn’t matter a great deal; there are a lot of empirically qualified individuals, and trying to figure out which specific person we’ll see nominated strikes me as scarcely more interesting (or predictable) than the office March madness bracket pool. While people are individuals and not categories, Obama will basically be choosing from among the standard three groups: liberals, moderates and conservatives. Yes, there’s every shade of the rainbow within those three broad categories, and SCOTUS Justices are notorious for charting courses that are different from what the people who nominated them thought they’d be getting – sometimes significantly different (see Souter, David) So instead of trying to make the million-dollar-putt of guessing specifically whom Obama will choose, what I think can be guessed at with a fair amount of accuracy is the type of jurist Obama will look for.

What kind of jurist will that be? I think we will get a tepid moderate, or perhaps even a conservative with one or two visibly progressive attributes/positions. Why? Several reasons. First, consider the political climate: Obama and congressional Democrats have just come through a bruising legislative battle over health care. They won, but only after a tremendous effort which weakened the poll numbers of everyone involved, Obama included. The poll numbers bounced back a little after the two health care bills actually were signed, but it took a lot of “expenditure of political capital,” as George W. Bush might have said, to get it done. You might argue that the victory means that the Democrats are “on a roll,” that they should be newly invigorated, fresh from the battle and ready to extend their mandate(s). I would reply: remember, these are Democrats we’re talking about, here. This is the political party which has institutionally chosen the Clinton-approved method of “triangulation” for nearly two decades, of trying to find a “third way,” preferably one that doesn’t allow the master manipulators at the RNC to paint them individually or collectively as “tax and spend liberals.” They’re not invigorated by their success (other than a couple of days’ worth of celebration in the immediate wake of health care reform’s passage), they’re terrified of it. Terrified that they’re going to go home to their districts and get yelled at by angry teabaggers at town hall meetings. Terrified that, come November, some GOP media svengali will be able to paint them as old-school money-wasting liberals, and they’ll be out of a job. There’s very little “hell, yes, I’m a liberal, lemme tell you why” sentiment left in the Democratic party these days. That’s why elaborately-produced fantasies/spoofs like this exist: because you can’t find them in reality.

Consider this: the public reaction to a protracted, nasty confirmation fight, replete with histrionic charges of socialism and baby-eating which would be almost certain to come from the GOP if Obama nominated a genuine liberal to the court, would be immediate. Depending upon the outcome, a protracted, televised Senate battle over a nominee could deal the Obama administration anywhere from a little to a ton of bad press and lowered poll numbers, and it’s replete with land-mines. Imagine a unified, sustained GOP filibuster which the Democrats are unable to paint as an extremist position but instead gets successfully spun as a “resolute, principled” GOP response to what was simply such a “liberal power-grab” that it not only had to be voted down, but had to be prevented from even coming to a vote. You can already hear Rahm Emanuel and most of the Democratic caucus shivering over that one. A public defeat of a Presidential nominee via filibuster would be a humiliating loss, emboldening Republicans just as we come into the political campaign season. Never mind that the successful installation of an acknowledged liberal champion might have the reverse effect: strengthening Obama and Democrats’ hands both for policy initiatives and for the upcoming midterms. Democrats haven’t thought like that for years. They’ve been in such a defensive crouch since the Reagan years that their first reaction is nearly always: “how can we get hurt here, and is there a way we can head that possibility off.” It’s a rare Democrat these days who even sees the upside in swinging for the fences – let alone has enough faith in the strength of their own values and ideas to be willing to risk the downside in trying for the upside.

Now consider this, in terms of the potential upside: before Justice Stevens announced his retirement, could you have told me which President nominated him, or how long he’d been on the court? You probably had a sense that he was one of the liberal minority, maybe even considered the leader of it, but how many details did you know beyond that? If you said “a lot,” you’re in a tiny minority of the SCOTUS-obsessed. How about any of the other current sitting SCOTUS Justices (with the exception of Alito and Roberts, since they were so recent)? The point of this is that, once confirmed by the Senate, almost no one remembers for very long who nominated a Justice. Partly, that’s to be expected, because a Justice’s tenure nearly always far exceeds that of the politicians who appointed and confirmed him or her. The public verdict on any individual Justice is often not rendered until long after the people responsible for putting them in place are out of national politics. That means, unfortunately, that there’s very little up-side to having nominated a “good” Justice. Sure, the base might think better of Obama if he nominates a stalwart progressive like Harold Koh or any of a number of others, but the public verdict won’t be in on whether Koh is good or bad for years to come.

In answer to my above challenge of how many Justices’ nominating Presidents could you name, maybe some of you could have identified Clarence Thomas as having been nominated by the elder George Bush, but I’m betting that’s probably it. I certainly can’t name most of the Justices’ nominating Presidents. And the reason we remember Thomas is precisely because of the bruising confirmation fight that occurred after his nomination. Ditto Robert Bork (one successful, one not). It will not have escaped Obama’s notice that when it comes to Supreme Court nominees, people tend to forget the good stuff (or, at least, Presidents don’t get political credit for the good stuff), while they remember the bad stuff. In other words, this is very likely to be viewed in the White House’s war room as a situation with very little potential political upside, and lots of opportunities for political downside. While I don’t want to sell the President or his team short by suggesting that ONLY political considerations will bear on the choice of a replacement for John Paul Stevens, I think that it will be quite easy for Obama to follow advice that is sure to be offered, which says: nominate someone with a strong record and a moderate reputation; that way, you’ll have done your duty to the constitution by not nominating someone unqualified like a Harriet Miers, but you won’t risk the political pitfalls of nominating someone who’s seen as substantially liberal.

And the court will move even further to the right, unfortunately, as a result.