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Replacing Justice Stevens on high court is not just a matter of ideology

By Robert Barnes
Washington Post Staff Writer
Sunday, April 11, 2010; A01

In nearly 35 years on the Supreme Court, Justice John Paul Stevens went from idiosyncratic maverick to the leader of the court's liberal wing. He always described it as the court's evolution more than his own -- almost all of his colleagues, he said, had been replaced by a justice with more conservative views.

The pattern is likely to continue with Stevens's successor.

Whether the court changed or Stevens changed or the political climate changed -- there's evidence of each -- the justice's decision to step down this summer will almost certainly mean a more conservative Supreme Court, even with Barack Obama in the White House and Democrats controlling Congress.

In his time on the court, so lengthy that one advocacy group has compiled a list of the greatest opinions Stevens wrote while in his 80s, the justice has left a liberal imprint. He embraced affirmative action (after first questioning it); declared a belief that the death penalty is unconstitutional (after first voting to restore it); and supported protections for gays.

He also defended abortion rights and opposed the notion that the Second Amendment guarantees a right to personal gun ownership.

It is questionable whether Obama, in the current political climate, could replace Stevens with a nominee who shares such strong opinions, even if that were the president's inclination. His nomination of Sonia Sotomayor last year made history but was not based on ideology. His appointments of lower-court judges, with a few notable exceptions, are more middle-of-the-road than the left would like.

But a bigger loss for liberals, who are already seeing their victories at the Supreme Court dwindle, will be Stevens's skills at building majorities. And no liberal on the reconstituted court will have the powers of seniority that Stevens, 89, put to use.

As was clear at the beginning of Obama's presidency, the actuarial tables are against him in remaking a newly muscular conservative court into a progressive force. Replacing a conservative justice with a liberal would make a difference, but the four justices consistently on the right are younger and show no signs of departure.

Douglas T. Kendall, head of the liberal Constitutional Accountability Center, said that makes the stakes higher for Obama this time than it was last year, when he chose Sotomayor to replace retiring Justice David H. Souter. Souter was a consistent vote on the left but not a leader on the court.

"Replacing Justice Stevens is harder because Stevens plays so many critical roles on the current court: He's the leader of the liberal wing, the best opinion writer on the court and, simultaneously, the justice most able to build surprising coalitions," Kendall said.

"President Obama has to consider characteristics in addition to ideology -- such as consensus- building and opinion-writing skills -- or face the risk that a liberal nominee will result in a rightward lurch on the Court."

The question of how to replace the "liberal" Stevens "would have surprised people in 1975" who confirmed him unanimously, said Michael Gerhardt, a law professor at the University of North Carolina who advised Democrats during Sotomayor's confirmation hearings.

That's because the view of Stevens based on the second half of his career on the court obscures the first.

Stevens was a Republican nominated by a Republican, President Gerald R. Ford, chosen not for his ideology but for his legal mind and the reputation he had built investigating corruption on the Illinois Supreme Court. The work led to his being selected by President Richard M. Nixon for the U.S. Court of Appeals for the 7th Circuit, and then by Ford to replace Justice William O. Douglas.

For years, Stevens was known for his numerous dissents because he disagreed not only with how the majority decided a case, but how his fellow dissenters came to their conclusions.

"When I clerked for him [in the late 1980s], the terms 'maverick' and 'wild card' still carried a lot of currency," said Diane Amann, a law professor at the University of California at Davis, who has studied and written about Stevens's career.

But Stevens's role began to change as he outlasted the others with whom he served. He became the court's senior justice in 1994; the position comes with modest-sounding powers, but he used it to great advantage.

When the justices vote in private conference, the senior justice speaks just after the chief justice. This has meant, especially in close, ideologically divisive cases, that Stevens has had a chance to counter the views of former chief justice William H. Rehnquist and current Chief Justice John G. Roberts Jr.

The role of senior justice will fall to Justice Antonin Scalia, who in many ways is Stevens's opposite.

Additionally, the senior justice decides who writes an opinion when he is in the majority and the chief justice is not. Stevens has taken that role himself to write narrow but forceful rulings striking President George W. Bush's policies toward terrorism detainees, or broad rulings such as banning capital punishment for the mentally retarded.

But he has been strategic as well. When Justice Anthony M. Kennedy joined the liberal justices in striking a Texas law that outlawed homosexual behavior, Stevens assigned him the opinion. He made similar concessions to former justice Sandra Day O'Connor.

He has been unabashed about the role that experience plays in allowing a judge to see the law differently -- his talk at a seminar on his jurisprudence was titled "Learning on the Job" -- and a belief that judges play a collaborative role with elected officials.

He told the New Yorker that a brief stint as a congressional staff member convinced him that "the legislature really works with the judges -- contrary to the suggestion that the statute is a statute all by itself." Lawmakers, he said, leave ambiguities in the law "to be filled in later" by judges.

Such views have sparked a running battle between Stevens and Scalia. When Stevens wrote in 2008 that his experience had convinced him the death penalty could not be applied constitutionally, Scalia wrote in reply that "it is Justice Stevens's experience that reigns over all."

And Richard A. Epstein, a leading libertarian law professor at the University of Chicago, said Stevens's deference to government power comes at the expense of the Constitution's emphasis on small government, economic liberties and property rights.

"On that, Justice Stevens saw no evil, heard no evil, and did lots of evil -- he was consistently on the wrong side of those questions," Epstein said. "His belief in the benevolence of government gets everything wrong."

Epstein added: "So I can't be a fan of his. But there's no question he became an intellectual leader of a generation of progressives."

Staff writer Carol D. Leonnig contributed to this report.

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