Supreme Court Justice John Paul Stevens is stepping down from the bench after 35 years. Stevens, who was appointed by President Ford, was initially predicted to represent conservative opinions, but has since become one of the most vocal supporters of liberal policy issues on the Supreme Court today. His retirement gives President Obama a rare chance to appoint two Supreme Court justices in one term. Many are expecting him to pick another Sonia Sotomayor, someone who will prove popular among liberals and conservatives alike.
The GOP has by this point made it abundantly clear that they are not willing to accept any concessions that Obama makes in his Supreme Court pick, and that a filibuster is virtually inevitable. Given that Republicans are not willing to act on Obama’s consistent efforts at centrism and bipartisanship, there is no motivation for the Obama White House to select a candidate who will appeal to Republican interests. If Republicans won’t accept a moderate candidate, why not pick someone more politically radical?
The initiation of the selection process during a midterm election year poses a difficult question for the Obama Administration. Democrats currently control both houses of Congress by a sufficient margin to pass most legislation, but lack the supermajority required to break a filibuster. Midterm elections usually see the majority party losing a few seats. so Obama must tread carefully to avoid alienating voters.
Should Obama’s pick become a campaign issue, selecting a radical candidate would be a gamble on Obama’s part. This is why many analysts predict that Obama will select Elena Kagan, the current United States Solicitor. Kagan, who has never been a sitting judge but has extensive experience as the Dean of Harvard Law School and as the first female Solicitor General, has drawn more attention than any other candidate on the White House short list.
Though definitely qualified to sit on the bench, Elena Kagan seems to be a very safe bet for our next Supreme Court Justice. A relatively unknown quantity, Kagan may be appointed with a modicum of Republican opposition. However, she could potentially upset the political dynamic of the court and do lasting damage to liberal interests if she is not whom she seems.
Kagan has offered few hints about her own judicial philosophies. She has admitted to holding a remarkably conservative definition of national security. Republicans like her for this reason, despite the fact that she holds progressive opinions on social issues. She is therefore a potentially damaging candidate for Obama who, once selected, may reveal herself a lemon for Democrats.
It is in Obama’s interests to maintain the current ideological balance of the Supreme Court. Although with Kagan he might avoid another drawn-out Senate battle at a potentially dangerous time, Kagan makes a poor replacement for Justice Stevens and may prove herself a bad match for liberals. Instead, Obama should look to find a candidate with a well-documented history of supporting more progressive constitutional ideals, who will keep the conservative court on its toes. Although it is doubtless that the Republican minority in the Senate will resist such a candidate, Obama should hold enough political capital and public confidence to break a filibuster and appoint a candidate to continue the truly masterful work of Associate Justice Stevens into the future.
Though Obama has tended to seek the middle road between conservative and liberal interests, the selection of an inappropriate candidate could affect the shape of the Judiciary for decades to come. Therefore Obama should select an altogether different kind of candidate from that indicated from his short list.
The best justice for this situation would be a principled liberal with a history of defending liberal policy and the ability to bring a new perspective to the bench. On the short list, no candidate can really hold a candle to Diane Wood, a justice from the Seventh Circuit Court of Appeals with a strong background on social issues cases. Wood was interviewed as a potential candidate for the seat eventually given to Sotomayor, and has established herself as a powerful liberal voice on the conservative Chicago court. Though she lacks Kagan’s centrist appeal, Wood is a highly experienced candidate behind whom Democrats can mobilize to crush Republican resistance and raise public confidence before the November election.
Justice Stevens was an influential voice in the Liberal bloc of the Supreme Court, and to fill his seat with anything other than a highly qualified progressive candidate would damage the credibility of the Democratic Party. The GOP has made it clear they plan to resist an attempt by Obama to select even a moderate candidate if they hold conflicting opinions. If Senate Republicans will not accept a moderate candidate then Obama has no incentive to appeal to the center and should appoint someone like Diane Wood, who will preserve the Stevens legacy.
Tristan Schlotz is a third-year literary journalism major. She can be reached at email@example.com.