Stevens replacement will move SCOTUS to the right?

There is some interesting discussion going on about the implications of Justice Stevens retirement from the Supreme Court. Believe it or not but there are folks saying the next Justice could be more conservative than Stephens. There are also voices saying that the good man isn’t all that liberal by the standards of forty years ago, rather the Republicans have moved so far right they are in what was once considered the loony bin part of American politics.

John Paul Stevens the restrainer

Justice John Paul Stevens has long been labeled, correctly, as the leader of the Supreme Court’s liberal bloc, but I suspect that future historians will refine that distinction a little more carefully. Stevens’s chief contribution has been to lead opposition to the galloping judicial overreach of the court’s conservatives.

Andrew Romano at Newsweek is another one who thinks, “Stevens, the liberal Justice” is an inappropriate description

Now that Stevens is exiting the stage, it’s quickly becoming clear what his tag will be. “Leader of the liberal wing of the Supreme Court … In other words, laypeople are being given little choice but to remember the hunched, bow-tied Stevens, 89, as really, really liberal—Dennis Kucinich in robes.

This would be funny if it weren’t so myopic. It’s true that after being promoted to the federal judiciary by Richard Nixon and to his current post by Gerald Ford—both Republicans, mind you—Stevens has come in recent years to lead the high court’s liberal bloc.

Consider Stevens’s own words. In a 2007 interview, he told legal journalist Jeffery Rosen that his views hadn’t changed since he first donned the robes 1975. “I don’t think of myself as a liberal at all,” he said, laughing and shaking his head. “I think as part of my general politics, I’m pretty darnn conservative.” His judicial hero? Potter Stewart, the Republican centrist and fellow “judicial conservative.” More recently, Stevens informed Jeffrey Toobin that he has identified with the Republican Party “ever since my father voted for Coolidge and Harding”; as such, he said, he saw himself as part of a tradition of moderate Republican Supreme Court justices that “goes way back.” Gerald Ford, who once attempted to impeach liberal Justice William O. Douglas for endorsing a “hippie-yippie-style revolution,” wrote in 2005 that he was “prepared to allow history’s judgment of my term in office to rest (if necessary, exclusively) on my nomination 30 years ago of John Paul Stevens to the U.S. Supreme Court.”

A very interesting examination of the ways in which Justice Stevens’ retirement will affect the court may be found at ScotusBlog – too detailed to synopsize, I strongly recommend you go and read it. The writer’s key point is the greatly increased influence which Justice Anthony M. Kennedy will wield on the Court’s decisions.

Combine the thinking found at ScotusBlog with the words of Ruth Marcus in the Washington Post’s PostPartisan blog and the possibility of the Supreme Court moving to the right politically even under the “socialist, commie sympathiser, apologiser, Kenyan” President we now have does not seem so far-fetched.

Obama could move the Supreme Court to the right

… it’s entirely possible that a more conservative court could turn out to be Obama’s paradoxical legacy — particularly if he only serves a single term. The likelihood of the court shifting to the right is greater than that of its moving leftward.

In part, this could have been predicted even before he took office. It reflects less about Obama than it does the identity of the departing justices, one liberal followed by another. The next oldest justice is Ruth Bader Ginsburg, 77. Conservatives are reaping the benefit of the Bushes, father and son, having selected justices who were relatively young.

Only in the case of a departure by 74-year-old Justice Antonin Scalia — not likely to occur voluntarily during a Democratic presidency — or Justice Anthony Kennedy, 73, would Obama have an opportunity to dramatically alter the court’s ideological makeup.

But there’s little in Obama’s record as president to suggest that he would expend enormous capital to secure the most liberal possible justice. From the point of view of liberal groups, Obama’s nominees for the lower federal courts have been, overall, disappointingly moderate

At this time, the three leading candidates for the position are Solicitor General Elena Kagan, D.C. Circuit Judge Merrick Garland and Seventh Circuit Federal Judge Diane Wood. Ms Kagan and Mr Garland are both considered to be centrists in their legal opinions while Ms Wood might be thought of as a more liberal justice, the truth is we don’t know how an individual might change once they have donned the black robe of a Supreme Court Justice.

The other, and I think most likely, reason that the court could be moved to the right is today’s political environment. The Party of No wants a fight right now and the nomination and confirmation of a Supreme Court Justice will be used for campaign material. As the mid-term elections have traditionally seen the loss of seats by the majority party, it is the hope of those on the right that a knockdown, screaming fight in Congress will be to their benefit – never mind the hypocrisy of acting in a manner in opposition to what they were saying and doing a couple of years in the past when Samuel Alito was being vetted by Congress. Will the President see this as opportunity to expose the hypocrisy or will he play the moderate and name a person that many of his supporters will find distasteful. No matter who he names, it appears likely the right wing will oppose that person even if were to be a reincarnation of Abraham Lincoln.


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