A More Conservative Court?

April 10th, 2010

By Tom Carter

Now that Supreme Court Associate Justice John Paul Stevens has officially resigned, effective at the end of this term, speculation is ramping up as to whom President Obama will nominate to replace him. As I noted in an earlier article, the question isn’t whether the President will nominate a liberal, but how liberal the nominee will be.

Justice Stevens is not only a liberal, he’s the acknowledged leader of the liberal bloc on the Court.  As the senior associate justice, he assigns opinions to other justices when the chief justice isn’t in the majority.  He’s also highly respected by the other justices, both for his legal scholarship and his personal qualities.  This gives him an unusual amount of influence with his colleagues.  No matter what the ideological views of his replacement, he or she won’t be able to fill Justice Stevens’ place on the court in those respects.

If the President nominates someone with equal or stronger liberal credentials, the net effect is still likely to be a weakening of the liberal bloc.  If he takes the easier route and nominates someone who is more moderate, the Court will clearly end up more conservative than it is now.

After the long, bruising battle over health care reform, it wouldn’t be unreasonable to think President Obama doesn’t want another fight now, especially with the mid-term election coming so soon.  He might prefer to nominate someone who would have broad support in the Senate, even though the nominee might not be quite as liberal as many Democrats would want.  If he does that, he might be able to acheive a modicum on bipartisanship in the Senate on an important issue, and that would be a plus going into the election in November.

Of course, there’s also the wild-card effect.  No one really knows how a nominee will perform on the Court, given the number of years justices serve and the unique nature of the Court itself.  Good examples are Justice Souter, who was nominated by the first President Bush, and Justice Stevens himself, who was nominated by President Ford.  It’s unlikely that either of these justices performed in the way anticipated by the presidents who nominated them.

And speaking of wild cards:  How about Hillary Clinton?  Think of the advantages to President Obama of nominating her.  He gets a liberal who will probably be treated more gently by the Senate, being a former senator herself.  It would take her out of the political equation, along with those who most strongly support her.  And it would earn the President some credit with many Democrats, women in particular.  Whether Clinton would accept a Court nomination is another issue, however.  She may want to stay on the political battlefield, and beyond that her massive ego may prevent her from wanting to be just one of nine, even on the Supreme Court.

Personally, I’d like to see the nominee be a strong liberal who knows the law and will become an effective justice.  Maintaining a Court divided fairly evenly along liberal-conservative lines is ultimately good for the country because it ensures that issues are fully considered from all points of view.  A powerfully liberal or powerfully conservative Court, on the other hand, would be more divisive and more likely to damage the Constitution.

(For additional discussion, see Obama could move the Supreme Court to the right by Ruth Marcus, The Washington Post.)

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