Sunday, April 11, 2010; A13
The Post asked legal and political experts how President Obama should consider his next Supreme Court vacancy. Below, assessments from Sen. Arlen Specter, Jonathan H. Adler, Jamie S. Gorelick, Erwin Chemerinsky, Walter Dellinger and Edward Whelan.
SEN. ARLEN SPECTER (D-PA.)
Member of the Senate Judiciary Committee
In his 34 years on the Supreme Court, Justice Stevens has been pivotal to maintaining balance on the interpretation of constitutional law as the court has moved decisively to the right. His scholarly 2004 opinion in Rasul v. Bush tracing the development of habeas corpus since the Magna Carta provided the basis for the court's landmark 2008 decision in Boumediene v. Bush limiting the president's detention power. His dissents in Bush v. Gore and Citizens United rank with the classic dissenting opinions of Justices Oliver Wendell Holmes and Louis Brandeis that later became the law of the land.
His successor will need the intellect, skill and tenacity in the intimate Supreme Court conference room to stop the further expansion of the president's executive authority as commander in chief and the erosion of congressional power to legislate under the Constitution's commerce clause and civil rights amendments.
He will be hard to replace, but that is what the court needs.
It is my hope that President Obama will appoint someone other than an appeals circuit judge (the other eight are sufficient); someone with diversity of experience; someone such as a senator like Hugo Black or a governor like Earl Warren or an attorney general like Robert H. Jackson or a president like William Howard Taft.
I urge my colleagues to set aside partisanship as we look to the confirmation process.
JONATHAN H. ADLER
Law professor and director of the Center for Business Law and Regulation at the Case Western Reserve University School of Law
Although a moderate justice when he first joined the Supreme Court, John Paul Stevens gradually shifted to the left and emerged in recent years as the leader of the court's liberal wing. Stevens's replacement is unlikely to alter the ideological balance on the court but could well affect the court's interpersonal dynamic. A new justice who is respected for his or her intellect and is capable of building coalitions is likely to have a greater influence than one who is more ideologically pure or predictable.
Stevens became so influential on the court because he was flexible and willing to compromise in crafting majorities. If he is replaced with a "liberal lion" -- as some have urged -- the result may be many rhetorically pleasing dissents, but less of an impact on the court and the law. The conventional wisdom has identified three potential nominees as favorites: Solicitor General Elena Kagan, Judge Diane Wood of the U.S. Court of Appeals for the 7th Circuit, and Judge Merrick Garland of the U.S. Court of Appeals for the D.C. Circuit. It's conventional wisdom for a reason. All three are widely respected for their intellect and experience, all are liberal, and all are believed to be capable of working effectively with those who do not share their views, and so could be potential bridge-builders on the court.
JAMIE S. GORELICK
Deputy attorney general in the Clinton administration; partner at WilmerHale
Two considerations will be top priorities for President Obama. The first is the impact a nominee will have on the court itself. The president, a constitutional scholar, knows the importance of the intellectual depth and integrity of an individual justice. If he hopes to have the court reach majority opinions aligned with his thinking and retrieve the center from the court's rightward shift, he will need a brilliant nominee who can go toe-to-toe with but also persuade conservatives on the court of his or her position. In the rarefied environment of the Supreme Court, this calls for someone who is highly regarded across the legal community and academia for clarity of thought, principled decision-making, dedication and -- most important -- persuasive collegiality, especially with those who hold different views.
The second major consideration is that this confirmation process will take place just before the midterm elections. There will be intense media attention paid to what kind of person the president has selected. Presidents are very aware that their choices for the court reflect on them. President Obama's first nominee, Justice Sonia Sotomayor, reflected well on him. Her record of achievement was impressive and her personal story compelling. The American people could admire and relate to her. President Obama will want a nominee who illustrates to the American people that he is principled, thoughtful and fair-minded.
Founding dean of the School of Law at the University of California at Irvine
It is important that President Obama select a justice who is liberal as John G. Roberts Jr. and Samuel Alito are conservative. It should not be the case that Republican presidents can successfully nominate very conservative justices but Democratic presidents must pick moderates. The challenge for Obama will be finding such an individual who can be confirmed without a major battle. That was the brilliance of the nomination of Justice Sonia Sotomayor last summer: Obama needed to expend no political capital to get her confirmed.
One way to accomplish this and simultaneously serve other goals will be to choose a highly qualified individual who has served as a governor or senator, rather than a court of appeals judge or law professor. Such a nominee is less likely to have a legal paper trail to be dissected.
More important, though, such a justice would bring real-world experience sorely missing on today's court. Each of the current nine justices had previously been a court of appeals judge. None of the nine justices who decided Brown v. Board of Education had ever been a court of appeals judge.
Justice John Paul Stevens's replacement is unlikely to shift the court's ideological balance in the short term. But if the new justice serves, like Stevens, for nearly 35 years, he or she will be justice until the year 2045 and will make a difference for decades to come.
Head of the Office of Legal Counsel in the Clinton administration; partner at O'Melveny & Myers
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.
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.
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.