Photograph by Steve Petteway, Collection of the Supreme Court of the United States. U.S. Supreme Court Justice John Paul Stevens
The full name of the retiring Supreme Court justice, John Paul Stevens, echoes another important “John Paul.” Like the late pope, Justice Stevens was of service to the cause of justice and democracy for several decades and across eras of political turmoil. For John Paul, the justice, the labors took place in the most ivory of towers, the Supreme Court of the United States. Though within a long stone’s throw of the home of our other two branches of government — what we often label the “political” branches of government — the opaque aura of the Court and the scrupulous secrecy within which much of its deliberations take place mean that American citizens may have less appreciation for how truly influential and important was Justice Stevens on the course of American law in his 35-year tenure. But make no mistake about it: Justice Stevens had a role in the leading political and legal matters of the modern era, from abortion to affirmative action to the election of President George W. Bush in 2000 to the war on terrorism. His imprint on American constitutional jurisprudence will remain substantial well into the future.
For the next several days, as we await the nomination of Justice Stevens’ successor, we will enter into the great sport of prognostication and, thereafter, rapid-fire punditry about how this nomination will play out in the crucible of a deeply divided Senate. With the paint barely dry from the bitter partisan struggle over health care, we will, whomever President Obama nominates, witness a battle over the suitability of the next nominee. Expect partisanship; gird for self-interested pleading; prepare for retail politics.
For all that, the next justice will probably not change appreciably the ideological makeup of the Supreme Court. In closely divided cases, Justice Stevens was reliably in the liberal mainstream. President Obama’s replacement nomination will likely find this mainstream as well. While we ought not to expect a clone, we can see this nomination as enriching the Court primarily because of the skills, experience and judgment of the next justice and not as a loud voice for a new jurisprudence. That is neither the style of President Obama nor the temper of the times.
Rest assured, however, there are many able lawyers who would bring novel intellectual perspectives and new life experience to enrich the Court. Diversity and demonstrated ability remain important criteria for selection. The three judges about whom we will hear and learn much in the coming days are well established, powerfully articulate, impressive lawyers. Two judges on the U.S. Court of Appeals, Diane Wood and Merrick Garland, would bring considerable experience and demonstrable wisdom to a Court often criticized as rather set in its ways (on both sides of the ideological divide and also in the middle). Elena Kagan, the solicitor general of the United States and the former dean of the Harvard Law School, likewise brings tremendous skills and perhaps, as well, a deep pragmatism and creative judgment — some of the qualities that well served the late Justice William Brennan, a liberal, but also a noted coalition builder.
Below the fold, as they say in the newspaper biz, are distinguished lawyers and judges who deserve careful consideration either for this vacancy or for others which may arise in the Obama years. Michigan governor Jennifer Granholm is, among her other talents, a distinguished lawyer and statesperson, with a record of both public service and service to the president’s agenda. Elsewhere in the federal judiciary, distinguished judges appointed by the last Democrat in the White House, including Margaret McKeown from California, by way of Wyoming, and Judge Robert Katzmann of New York, are well qualified and widely admired. And, finally, there is the special appeal of lawyers whose career paths are outside of central casting. Cass Sunstein of the Office of Management and Budget and recently of Harvard Law School and Elizabeth Garrett, former congressional tax and budget counsel and now on the faculty of the University of Southern California Law School, are two original thinkers and of Supreme Court timbre.
Supreme Court nominations are the occasion for both retrospective appreciation and for looking forward to the future. Hopefully, the inevitable politics of the process will not destroy both of these important occasions.
Daniel B. Rodriguez is the fellow in law and urban economics at the Baker Institute. He is also the Minerva House Drysdale Regents Chair in Law at The University of Texas at Austin.