Who Will Get the Stevens Seat?

The retirement of Justice John Paul Stevens this summer, when he’ll have turned 90, will be the end of an era for the U.S. Supreme Court, and we’re not talking about just his signature bow ties. Stevens is likely the last link to a time when Presidents typically chose Justices who weren’t raised in ideological petri dishes. When Gerald Ford nominated Stevens in 1975, he couldn’t have known much more about his choice than Stevens’ reputation for integrity, brilliance and impeccable manners. The genus was Republican, true, but the species was country club. And Ford had played enough golf to know that gentlemen don’t ask other gentlemen about their politics.

(See pictures of Justice John Paul Stevens.)

That’s all finished, and Stevens helped finish it. Along with Earl Warren, William J. Brennan, Harry Blackmun and David Souter, Stevens is part of a small army of modern-era Justices who marched leftward after being elevated to the court by Republican patrons. If Presidents and political parties now put a premium on ideological purity, it’s because they have seen what can happen when a Justice decides to migrate. The art of today’s Supreme Court nominations comes down to finding candidates who can talk the talk of open-mindedness — then, once safely confirmed by the Senate, wage the court’s ideological battles with tireless consistency.

The surprising thing about Stevens, given his moderate beginnings and his undisputed charm, is how central he became to those ideological battles during the last decade of his long career. Only three Justices in history have served longer than Stevens, led by William O. Douglas, whom Stevens replaced. Taken together, Douglas and Stevens have filled their seat since before World War II. A strong writer who insisted on drafting his own opinions, Stevens wound up as the clarion of the court’s left wing. No one in the high tribunal blew a louder bugle in warning against conservative trends, which he often denounced in stinging terms.

(See the top contenders to succeed Justice John Paul Stevens.)

Take this example: “Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.” Thus Stevens excoriated the conservative majority that ruled in favor of George W. Bush against Vice President Al Gore in 2000. In this year’s controversial campaign-finance case, Stevens accused the majority Justices of pursuing their own “agenda” at the expense of “the common sense of the American people.”

(See the fiercest Supreme Court–nomination battles.)

Some Democrats would like to see President Obama nominate a sharp-penned progressive to take over the Stevens soapbox. Nan Aron of the Alliance for Justice, for example, speaks of Stevens’ “strong voice” and urges Obama to choose “a worthy successor.” Without Stevens, there will be no one in the court’s liberal wing to balance the rhetorical firepower of conservative Antonin Scalia, who will take over the role of senior associate Justice. Given the fever pitch of Washington politics in an election year, though, Obama might wish to avoid a polarizing confirmation battle. Instead, he’ll seek a candidate with a soothing demeanor and a paper trail as bland as Milk of Magnesia. Tender on the outside, steely on the inside — a Democratic version of Chief Justice John Roberts.

See four myths about Supreme Court nominees.

See the top 10 news stories of 2009.

On the list of 10 or so candidates floated by the White House in recent days, no one better fits that bill than Solicitor General Elena Kagan, a former Clinton Administration official and the first female dean of Harvard Law School. Like Roberts, Kagan came of age in the White House counsel’s office, a busy intersection of politics and law. Like Roberts, she made a practice of avoiding controversial statements and winning admirers from across the political divide. And also like Roberts, she persuaded her supporters that she shared their political views without ever being caught saying so. All of which makes her, according to court watcher Tom Goldstein, founder of the influential SCOTUSblog, “the prohibitive favorite.”

(See who’s who in Barack Obama’s White House.)

No one would have predicted back in the days of disco and three-piece polyester suits that Stevens would become a darling of the American left. Born into a wealthy Chicago family in 1920, he was a distinguished corporate antitrust lawyer before Republican President Richard Nixon appointed him to the Seventh Circuit Court of Appeals in 1970. Elevated to the Supreme Court five years later, Stevens fit easily into the center of the Republican-dominated court. He wrote the famous opinion banning the broadcast of comedian George Carlin’s seven dirty words. He opposed affirmative action and joined a group of swing Justices to reinstate the death penalty. Like several of his colleagues in that period, Stevens had no grand constitutional theory to guide his decisionmaking; instead, he drilled deeply into the facts of each file and tried to go where the case law took him. Critics called him quirky. Admirers have praised his work as a classic example of conservative common-law judging. His 1984 opinion in Chevron v. NRDC, balancing the legislative intent of Congress with the rulemaking authority of the executive-branch agencies, has been called the most cited Supreme Court decision in history.

In recent interviews, Stevens has insisted that he never changed; the court did. He’s halfway correct. The court did change. It now decides fewer cases, in more heated terms. The center of gravity hasn’t moved much (back then it was conservative Lewis Powell who was the swing vote; now it’s conservative Anthony Kennedy), but in the 1970s the court was led from the center, while today the loudest voices are on the extremes.

Stevens did change, though. In 2008 he suggested that the death penalty was unconstitutional, joining Blackmun and Powell in repudiating the legal contraption they were instrumental in creating. He changed tack on affirmative action and resisted limits on Internet content that might have made even George Carlin blush.

(See the top 10 political gaffes of 2009.)

History may conclude that Stevens did his most important work in recent years, as he led the court in limiting a President’s power to detain suspected terrorists indefinitely, with scant access to judicial review. In those opinions, he connected with what is arguably the essence of the Constitution: its checks and balances on excessive concentrations of power.

Some on the left are calling on Obama to make this issue — the rights of detainees and the limits of presidential authority — a sort of litmus test for Stevens’ successor. The wrong pick, they fear, could produce a remarkable result: a Democrat replaces a Republican on the court, yet the philosophical center tilts toward the conservatives. But there is something not quite right about trying to maintain a legacy for John Paul Stevens by installing a new litmus test. If his long career stands for any principle, it is that an independent judiciary starts with truly independent judges.

See the best pictures of 2009.

See 25 people who mattered in 2009.