The Stevens Scotus Replacement Thread

[hblask 1]

So Stevens is retirement, and here's the first non-insane article I've seen on the early leaders.http://www.salon.com/news/opinion/glenn_gr...vens/index.htmlJustice John Paul Stevens, who was appointed to the Supreme Court by Gerald Ford in 1975 and then became the leader of its "liberal" wing, told the White House today that he was retiring in the Summer. I had been planning to write a comprehensive post documenting the reasons why one of the clear front-runners to replace Stevens -- current Solicitor General and former Harvard Law School Dean Elena Kagan -- would be such a harmful choice (similar to the post I wrote along the same lines about Cass Sunstein's record). I'm not quite finished with all of my Kagan research yet, but in light of Stevens' announcement today, I do want to make one key point about this. When President Obama chose Sonia Sotomayor to replace David Souter, that had very little effect on the ideological balance of the Court, because Sotomayor was highly likely to vote the way Souter did in most cases. By stark contrast, replacing Stevens with Kagan (or, far less likely, with Sunstein) would shift the Court substantially to the Right on a litany of key issues (at least as much as the shift accomplished by George Bush's selection of the right-wing ideologue Sam Alito to replace the more moderate Sandra Day O'Connor). Just click on the links in the last paragraph here, detailing some of Kagan's "centrist" (i.e., highly conservative) positions on executive power, civil liberties and Terrorism for a sense of how far to the Right she would be as compared to Stevens. Over the past decade, the Court has issued numerous 5-4 decisions which placed at least some minimal constraints on executive power. Stevens was not merely in the majority in those cases, but was the intellectual leader justifying those limits. And he often went further in demanding due process and accountability for the Executive than even the "liberal" wing in general was willing to go -- as exemplified by his joining Justice Scalia's dissent in Hamdi, where the two unlikely allies both argued that the President could never detain U.S. citizens as "enemy combatants," but instead must charge them with a crime (e.g., treason) and obtain a conviction in order to imprison them. As Alliance for Justice President Nan Aron put it today: Stevens was a "master tactician" who "emerged as one of the Court's most vocal and eloquent spokespersons for individual liberties, separation of powers, and equal access to justice." Given Stevens' status as the leader of the Liberal wing, The Nation's Ari Melber said today: "With Justice Stevens retiring, it will take a nominee like Harold Koh just to maintain the Court's status quo." The danger that we won't have such a status-quo-maintaining selection is three-fold: (1) Kagan, from her time at Harvard, is renowned for accommodating and incorporating conservative views, the kind of "post-ideological" attribute Obama finds so attractive; (2) for both political and substantive reasons, the Obama White House tends to avoid (with a few exceptions) any appointees to vital posts who are viewed as "liberal" or friendly to the Left; the temptation to avoid that kind of nominee heading into the 2010 midterm elections will be substantial (indeed, The New York Times' Peter Baker wrote last month of the candidates he said would be favored by the Left: "insiders doubt Mr. Obama would pick any of them now"); and (3) Kagan has already proven herself to be a steadfast Obama loyalist with her work as his Solicitor General, and the desire to have on the Court someone who has demonstrated fealty to Obama's broad claims of executive authority is likely to be great. As but one example, see here as National Review's Ed Whelan, a former official in the Bush/Cheney OLC and a far-right legal ideologue, lavishly praises Kagan's record on "national-security and executive power" issues while discussing her possible nomination to the Court. Such admiration for Kagan's record among the Right is far from unusual; as the NYT's Eric Lichtblau put it last year:

When Elena Kagan went before the Senate Judiciary Committee in February as President Obama’s nominee for solicitor general,

Republicans were almost as effusive as the Democrats in their praise for her.

There was

no daylight between Ms. Kagan, who was the dean of Harvard Law School, and Senator Lindsey Graham

, Republican of South Carolina, as he led her through a six-minute colloquy about the president’s broad authority to detain enemy combatants. . . . Indeed, there was

so much adulation in the air from Republicans

that one Democrat, Senator Amy Klobuchar of Minnesota, joked at the hearing that she understood how Ms. Kagan

"managed to get a standing ovation" from the Federalist Society, a conservative legal group.

Does that sound like an appropriate choice to replace Justice Stevens? There won't be any questions about Kagan's qualifications, expertise or intellect -- she's exceptionally smart and knowledgeable -- and she largely holds positions on social issues, such as a solid pro-choice and pro-gay record, that will be pleasing to progressive constituencies. But the same is true for many outstanding candidates to replace Stevens, including Appellate Court Judge Diane Wood, former Yale Law School Dean and current State Department legal adviser Harold Koh, and Stanford Law Professor Pamela Karlan. And those choices, unlike Kagan (or Sunstein), would maintain the Court's fragile ideological balance rather than shifting it decisively to the Right for decades to come. UPDATE: Like clockwork, it is now reported, by The Huffington Post, that Kagan "is rapidly emerging as a frontrunner." Meanwhile, in very related news, Dawn Johnsen has now withdrawn as nominee to head the Office of Legal Counsel. Despite there being 60 and then 59 Democratic votes in the Senate -- plus the support of GOP Sen. Richard Lugar (though with the opposition of Sen. Nelson) -- Johnsen's nomination has sat without a vote since January, 2009. It is hard to believe, to put it mildly, that the White House would have been unable to secure her confirmation had it wanted to (even if by recess appointment if nothing else). Johnsen was one of the best Obama nominees to an important post, if not the best, and her treatment reflects many of the points I made above.

[CaneBrain 95]

Sighaments.Have to hand it to Obama, he gets this supreme court thing. He is picking someone who will vote exactly as he wants on social policy AND help him burnish his protect America from the muslim boogeymen credentials.Losing Stevens hurts a lot more than losing Souter.

[brvheart 1,752]

Wouldn't it be great if an Obama appointee pulled a Souter on him? ONE TIME DEALER!

[AmScray 355]

I saw some TV piece on Hussein where they talked a lot about him being closely associated with a number of Federalist Society members in college- on a personal basis. One thing about him; he most definitely isn't what his idolaters think. Yes sir, yes ma'am, men, women and even the wee little tots out there in the crowd, step right up, sit right down and pay very careful attention to what I'm about to tell ya. What I have right here in my hand can cure what ails 'ya... Be you Democrat or Republican or Independent, Teetotaler, Whig or Free-Soiler, the rarefied serpentine elixir contained in this most ordinary looking little glass bottle is the very answer to all your problems, whatever those problems may be...

[85suited 0]

back to back hilarious posts... HE is definitely a snake oil salesman

[CaneBrain 95]

Wouldn't it be great if an Obama appointee pulled a Souter on him? ONE TIME DEALER!

No I think it would be bad.Obama is not the schmuck Bush the first was......anyone he appoints will tow the line on social issues. Sounds like all the frontrunners are pretty conservative on exec power. Clever.

[Southern Buddhist 1]

I've said it before ... when one party establishes a secretive, imperial presidency, they had better be perfectly clear that the other party will hold on to that same power when the pendulum swings.Anyone who was applauding when W stonewalled, appointed whoever he pleased, and ignored subpeonas should STFU now.The executive branch has much too much power now, but Obama's not dumb enough to throw away a gift that landed in his lap. He's going to solidify that power, and when the pendulum swings again, Democrats are certainly going to regret it. I wasn't applauding for W, and I'm not applauding now.

[Southern Buddhist 1]

This may have been one of the "insane" articles Henry referenced, from the New York Times:

Stevens, the Only Protestant on the Supreme CourtBy ADAM LIPTAKWASHINGTON — With just five exceptions, every member of the Supreme Court in the nation’s history has been a white male, like Justice John Paul Stevens. But Justice Stevens cuts a lone figure on the current court in one demographic category: He is the only Protestant. His retirement, which was announced on Friday, makes possible something that would have been unimaginable a generation or two ago — a court without a single member of the nation’s majority religion. “The practical reality of life in America is that religion plays much less of a role in everyday life than it did 50 or 100 years ago,” said Geoffrey R. Stone, a law professor at the University of Chicago. Adding a Protestant to the court, he said, would not bring an important element to its discussions. “These days,” said Lee Epstein, a law professor at Northwestern and an authority on the court, “we’ve moved to other sources of diversity,” including race, gender and ethnicity. That move reflects a profound shift in the way we think about law, and in the very meaning of identity politics. On the one hand, the job of Supreme Court justice now seems to require a very specific set of qualifications. Except for Justice Stevens, all the current justices attended law school at Harvard or Yale. Like Justice Stevens, all served on federal appeals courts before their appointments, in a break from the historical practice of including leading lawyers and politicians in the mix. And all members of the current court, except for Justice Stevens and Justice Anthony M. Kennedy, were elevated from appeals courts in the Boston-to-Washington corridor. On the other hand, society seems to demand that the court carry a certain demographic mix. It is hard to imagine the court without a black justice, for instance, and it may well turn out that Justice Sonia Sotomayor is sitting in a new “Hispanic seat.” It would surprise no one if President Obama tried to increase the number of women on the court to three. Not so long ago, there was similar casual talk, but of a “Catholic seat” or a “Jewish seat” on the Supreme Court. Today, the court is made up of six Roman Catholics, two Jews and Justice Stevens. It was not ever thus. Presidents once looked at two main factors in picking justices. “Historically, religion was huge,” said Professor Epstein of Northwestern. “It was up there with geography as the key factor.” There is, for instance, no official photograph of the justices from 1924. The court had to cancel its portrait that year because Justice James C. McReynolds, an anti-Semite and a racist, refused to sit next to Justice Louis D. Brandeis, the first Jewish justice. The fact that William J. Brennan Jr. was Catholic seemed to figure in President Dwight D. Eisenhower’s decision to nominate him to the court in the election year of 1956. But when Justice Abe Fortas resigned in 1969 from what was considered the “Jewish seat,” President Richard M. Nixon saw no political gain from replacing him with another Jew, settling instead on Harry A. Blackmun, a Methodist. As that progression suggests, religion, which once mattered deeply, has fallen out of the conversation. And it seems to make people uncomfortable on the rare occasions it is raised. Professor Stone, of the University of Chicago, learned this in 2007 when he wrote an opinion article in The Chicago Tribune after the Supreme Court upheld the federal Partial-Birth Abortion Ban Act in Gonzales v. Carhart. “Here is a painfully awkward observation: All five justices in the majority in Gonzales are Roman Catholic,” Professor Stone wrote. “The four justices who are not all followed clear and settled precedent.” “Given the nature of the issue, the strength of the relevant precedent, and the inadequacy of the court’s reasoning, the question” of religion, he went on, “is too obvious to ignore.” Professor Stone said he was surprised by the vehement criticism that followed. Catholics in particular, he recalled in an interview, said the religion of the justices should be off limits. One Catholic, Justice Antonin Scalia, was especially furious about the questions raised in Professor Stone’s article. “I had been pleased and sort of proud that Americans didn’t pay attention” to religion, he said in an interview with Joan Biskupic for her recent biography of him, “American Original.” “It isn’t religion that divides us anymore.” Professor Stone’s article, he said, was “a damn lie,” adding that “it got me so mad that I will not appear at the University of Chicago until he is no longer on the faculty.” The short list of candidates to succeed Justice Stevens includes two Jews, Solicitor General Elena Kagan and Judge Merrick B. Garland of the United States Court of Appeals for the District of Columbia Circuit, and one Protestant, Judge Diane P. Wood of the United States Court of Appeals for the Seventh Circuit, in Chicago. But it is unlikely that religious affiliation will play a meaningful role in the decision making. Justice Ruth Bader Ginsburg has said that society is past worrying about a nominee’s religious affiliations. “No one regarded Ginsburg and Breyer as filling a Jewish seat,” she said of herself and Justice Stephen G. Breyer in a 2003 speech at the Brandeis School of Law in Louisville, Ky. “Both of us take pride in and draw strength from our heritage, but our religion simply was not relevant to President Clinton’s appointment.” For his part, Professor Stone said there were ways a justice’s religious affiliation could have an impact on the court. President Obama, for instance, could nominate an evangelical Christian. Mark Tushnet, a law professor at Harvard, had another suggestion. President Obama, he said, could use Justice Stevens’s retirement as an opportunity both to honor tradition and to break new ground. “The smartest political move,” he said, “would be to nominate an openly gay, Protestant guy.”

[AmScray 355]

I'm actually in favor of MORE executive power- honestly, almost Fascist-like executive power, in certain cases- as long as the person at seated at the levers of that power is the right person. I think a more interesting (and potentially efficacious) mode of democracy is one where the electorate regularly allocates 'degrees' of power and authority as a standard function of their electoral balloting process. W as president? Executive power down... Hussein as President- Executive power down... Slick Willie as president- Executive power up a bit... Jimmy Carter- Executive power cranked down to 0 or 0.1. Reagan as President- Executive power up...Whatever authority isn't explicitly delegated- by the people and in real time- to the Executive branch is tasked to Congress.

[hblask 1]

I'm actually in favor of MORE executive power- honestly, almost Fascist-like executive power, in certain cases- as long as the person at seated at the levers of that power is the right person. I think a more interesting (and potentially efficacious) mode of democracy is one where the electorate regularly allocates 'degrees' of power and authority as a standard function of their electoral balloting process. W as president? Executive power down... Hussein as President- Executive power down... Slick Willie as president- Executive power up a bit... Jimmy Carter- Executive power cranked down to 0 or 0.1. Reagan as President- Executive power up...Whatever authority isn't explicitly delegated- by the people and in real time- to the Executive branch is tasked to Congress.

I like the theory, but try explaining this to people who think that growing weed in your back yard and smoking it yourself is "interstate commerce".

[AmScray 355]

I like the theory, but try explaining this to people who think that growing weed in your back yard and smoking it yourself is "interstate commerce".

LOL commerce clause endrunning. Yeah, what a ****ing joke.

[CaneBrain 95]

I'm actually in favor of MORE executive power- honestly, almost Fascist-like executive power, in certain cases- as long as the person at seated at the levers of that power is the right person. I think a more interesting (and potentially efficacious) mode of democracy is one where the electorate regularly allocates 'degrees' of power and authority as a standard function of their electoral balloting process. W as president? Executive power down... Hussein as President- Executive power down... Slick Willie as president- Executive power up a bit... Jimmy Carter- Executive power cranked down to 0 or 0.1. Reagan as President- Executive power up...Whatever authority isn't explicitly delegated- by the people and in real time- to the Executive branch is tasked to Congress.

Yeah but you would have the American populace at large allocating the power. I mean, after 9/11 we might have overreacted by giving a moron limitless executive power and passed it off as a Patriotic Act.I think your system already exists.

[Balloon guy 158]

Yeah but you would have the American populace at large allocating the power. I mean, after 9/11 we might have overreacted by giving a moron limitless executive power and passed it off as a Patriotic Act.I think your system already exists.

Yea, but in your example it worked out very good for the country. Personally I would like to see the Patriot Act become the 28th Amendment.

[hblask 1]

Yea, but in your example it worked out very good for the country for the people who didn't get caught in illegal wiretaps and searches without warrants. Personally I would like to see the Patriot Act become the 28th Amendment.

[AmScray 355]

Yeah but you would have the American populace at large allocating the power. I mean, after 9/11 we might have overreacted by giving a moron limitless executive power and passed it off as a Patriotic Act.I think your system already exists.

I forgot to mention that 'voting' in my system would be limited to white men with IQs above 115.

[CaneBrain 95]

I forgot to mention that 'voting' in my system would be limited to white men with IQs above 115.

see, that's an important detail.Do Jews qualify as white under this system?

[AmScray 355]

see, that's an important detail.Do Jews qualify as white under this system?

Yes

[El Guapo 8]

I forgot to mention that 'voting' in my system would be limited to white men with IQs above 115.

I'd like your thoughts on my Voting rights thread. I think its still on the first page of this forum.