Replacing Stevens

When John Paul Stevens announced last Friday that he was stepping down from the U.S. Supreme Court, it signaled the end of one of the longest tenures in the Court’s history: Stevens’s 34 years on the high bench are only two years shy of the record service of his immediate predecessor, William O. Douglas. Like David Souter, who retired last summer, Stevens was a Republican-appointed jurist who migrated left in his lifetime on the Court.

Note that Stevens was never a “conservative” as we think of the term today. When Stevens was nominated by Gerald Ford in 1975, the conservative movement was just beginning: the right-leaning Heritage Foundation was only two years old, and my own employer, the Manhattan Institute, wouldn’t be founded for another four years. It’s hardly surprising that the Midwestern moderate Stevens would be tapped by the ideologically similar Ford, particularly since the unelected president was filling in for the recently resigned Richard Nixon and facing a Senate with a hostile Democratic supermajority.

But Stevens also drifted decidedly leftward over his tenure. In 1978--only fourteen years after passage of the Civil Rights Act--he wrote that a university affirmative-action program violated the Act. Two years later, he opined in no uncertain terms that a racial quota program was unconstitutional: “If the National Government is to make a serious effort to define racial classes by criteria that can be administered objectively, it must study precedents such as the First Regulation to the Reichs Citizenship Law of November 14, 1935.” But by 2003--39 years after the Civil Rights Act had passed--Stevens had switched positions and maneuvered a slim court majority to uphold the aggressive affirmative-action program at Michigan Law School.

Court watchers have dubbed this leftward drift--observable in some but certainly not all Republican-appointed justices--the “Greenhouse effect,” suggesting that jurists have tended to bend their positions to those of The New York Times and its former Supreme Court reporter, Linda Greenhouse. In her portrait of Justice Stevens last weekend, Greenhouse herself characterized it more charitably, as “learning on the job.”

Make no mistake: whomever President Obama selects to replace Stevens, a “reverse Greenhouse effect” simply won’t happen. We shouldn’t prejudge the president’s nominee, but there’s no modern precedent for a Democrat-appointed justice drifting rightward, and Mr. Obama--himself a trained lawyer and former academic legal lecturer--understands the stakes at play. And with a wide Democratic majority in the Senate, it’s very likely that the president will get his pick unless it’s someone with a highly inflammatory paper trail.

None of this means, however, that the Judiciary Committee show trials about to ensue are a useless exercise. Even if confirmation is all but assured, a robust and thorough exercise of the Senate’s constitutional “advice and consent” role is of vital importance. Stevens’s lengthy service itself serves as a necessary rebuttal to the shallow argument that President Obama’s choice of successor “doesn’t matter” because the “court balance” will not be affected. Yes, Stevens is among the Court’s left-leaning faction, as will be, inevitably, the president’s eventual nominee. But who knows what the Court will look like 34 years from today?

Moreover, the upcoming hearings offer a rare opportunity to educate the broader public about the proper role of judges, statutory and constitutional interpretation, and litigation in America. This year, the education process couldn’t come at a better time. Public Citizen and hosts of left-wing activist groups have been demagoguing the Court’s Citizens United campaign-finance decision, joined by several Democrat politicians including the president himself, who shamelessly and misleadingly upbraided the justices before a hostile Congress in his nationally televised State of the Union address.

And hot button issues surrounding campaign finance, guns, race, and abortion are hardly the only important items on the judicial landscape. Tort litigation in the United States consumes about two percent of our economy--a share two to three times that in other developed nations--and Supreme Court decisions regularly expand and contract opportunities for the lawsuit lobby. Justice Stevens has often been a key swing vote on one side or the other of the off-the-front-page legal decisions that tip the balance between fees for lawyers and jobs for hard-working Americans.

As did Sonia Sotomayor, the president’s forthcoming nominee will necessarily dodge the hard questions and obfuscate her own past writings and comments that prove controversial. But the questions still need to be asked. Let’s hope that the Senators ask the right ones--and that the public listens.

This piece originally appeared in Washington Examiner

This piece originally appeared in Washington Examiner