By Bill Press
Tribune Media Services
What difference does it make who’s on the Supreme Court? All the difference in the world. And few have ever made more difference than John Paul Stevens.
A Republican, appointed by Republican Richard Nixon to a federal appeals court and by Republican Gerald Ford to the Supreme Court, Stevens became the most consistent, dependable and fearless liberal voice on the court. Why the change? It wasn’t he who moved to the left, Stevens insists, it was the court that moved far to the right.
Indeed, we’ve never seen a court as far right as this one. And as the court moved to the right, a funny thing happened. Conservatives, drunk with majority power, became the very “activist” judges they once railed against — while liberals, led by Stevens, pleaded for judicial restraint. The old adage that conservative judges apply the law, whereas liberal judges make up the law, was turned upside down by Antonin Scalia, Clarence Thomas, Samuel Alito and John Roberts — with the fifth vote, formerly provided by William Rehnquist, now too often added by Anthony Kennedy.
Most recently, in Citizens United v. Federal Election Commission, conservatives on the Roberts court transformed what began as a narrow case over a political documentary into a sweeping repeal of all limits on corporate campaign contributions. In a blistering dissent, Stevens condemned the hypocrisy of conservatives wallowing in such blatant judicial activism: “Essentially, five justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.”
Of course, the worst case of judges making the law will always be Bush v. Gore, when five black robes decided to appoint the next president of the United States, since they were tired of waiting for Florida to count the votes. And once again, after so-called conservatives on the court threw both the popular vote and states’ rights out the window, Stevens exposed their hypocrisy. “Although we may never know with complete certainty the identity of the winner of this year’s Presidential election,” he wrote in his powerful dissent, “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.”
The big question now is: Who will replace Stevens on the court? As he faces that decision, President Obama is getting the same bad advice from a lot of Republicans and Democrats.
Republicans are warning him not to appoint another liberal. They demand a centrist. They’ve even threatened to filibuster any nominee who’d vote to overturn Citizens United (the new Republican litmus test). But many Democrats aren’t much better. They also advise Obama to name someone “in the middle” in order to avoid a bloody confirmation battle just before the midterm elections.
Obama should ignore them all. To fill Stevens’ shoes, there’s only one rule to follow: Replace one proud liberal with another proud liberal. Otherwise, the court will tilt too far to the right. Look at its makeup today. There are four rabid right-wingers: Scalia, Thomas, Roberts and Alito; one center-right: Kennedy; and three center-left: Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor. Without Stevens, there is no strong leader on the left.
Like his politics or not, Scalia is a fierce conservative. He’s combative, in your face, and makes no bones about using the court to advance his conservative political agenda. And that’s fine. But what the court needs now is a liberal bulldog who’s just as proud, fiery and outspoken. We need an Antonin Scalia on the left.
And what’s Obama got to lose? If he learned anything from the health care debate, he should know that no matter whom he nominates, Republicans will attack him or her as the most radical person ever nominated to the Supreme Court. So, as long as he or she is otherwise qualified, why not nominate the most radical jurist ever? Give Republicans something real to complain about.
And when they do, the rest of us should remind them that’s what presidential elections are all about: The winner gets to shape his legacy through lifetime appointments to the Supreme Court. Having won that power, President Obama should use it to make his mark in the tradition of John Paul Stevens.
After all, conservatives have four proud right-wingers on the court. Don’t we lefties deserve at least one proud liberal?
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