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Who should replace Justice Stevens?

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There are many things a president does to get elected. There are some things a president gets elected to do. Selecting a justice of the Supreme Court is one of the latter. Because it is a decision so deserving of the expenditure of a president's political capital, it is a matter on which he should not compromise. I do not mean to suggest whom President Obama should choose, merely that he should choose with his heart.

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The desire to avoid a filibuster need not necessarily be part of the equation. It is by no means clear that it would be politically viable to sustain a filibuster against any professionally qualified Supreme Court nominee. Unlike other, lesser appointments, a Supreme Court nomination becomes and remains the dominant national news story. The country clearly expects an up-or-down vote on the nomination. (This is partly why Judge Clarence Thomas was confirmed even though the party of the president who nominated him had only 43 senators.)

A bold choice does not necessarily mean an "activist" choice. As a former community organizer, President Obama believes that permanent progressive change best comes from achieving popular political victory. What may matter most to him for the next few decades is avoiding a court that strikes down progressive legislation and arrogates to itself decisions (such as campaign finance regulation) that the president believes should best be left to majoritarian political processes.

EDWARD WHELAN

President of the Ethics and Public Policy Center; former clerk to Justice Antonin Scalia; contributor to National Review Online's Bench Memos blog on judicial nominations and constitutional law

President Obama has recently raised alarms about the supposed threat of conservative judicial activism -- of Supreme Court majorities that would wrongly override democratic enactments and invent constitutional rights that advance conservative policy ends. But the alternative that he favors is liberal judicial activism: He has committed to appoint justices who will indulge their own subjective passions, their "deepest values" and "the depth and breadth of [their] empathy" in deciding what the Constitution means.

In his comments thanking Justice Stevens for his service on the court, Obama said that he would nominate someone who "knows that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens." If the president genuinely cares about not having the voices of ordinary citizens drowned out, he would favor a third way, the path of judicial restraint. He would search for and select a nominee who would steadfastly defer to the political processes and leave in force democratic enactments unless they violate the clearly ascertained meaning of a constitutional provision.

Of the candidates being mentioned to fill the Stevens vacancy, the one who most clearly offers the promise of pursuing the path of judicial restraint is Judge Merrick Garland of the U.S. Court of Appeals for the D.C. Circuit.


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