John Paul Stevens

New Supreme Court Term Begins Today!

The Supreme Court begins its new term this morning, and it is the youngest Court in many years!

This Court is unique in that it includes three women for the first time! But it also includes six Catholics and three Jews, so for the first term ever there are no Protestants on the Court!

Not that long ago, the Court was ONLY white Protestants, but now has become a Court of “minorities”, including an African American, an Hispanic or Latino, and two Italians, beyond the Catholics, Jews and women already mentioned!

The Court is now averaging in the mid fifties in age, due to the comparative youth of Elena Kagan and Sonia Sotomayor, President Obama’s two Supreme Court appointments!

But this Court is still seen as leaning to the right, and it is not expected there will be any noticeable difference in Court decisions with Kagan replacing John Paul Stevens!

Cases involving illegal immigration and freedom of speech will highlight the Court’s term between now and next June!

As always, the Supreme Court will have the influence that former Chief Justice Charles Evans Hughes stated in one sentence, often quoted, during the 1930s but repeated ever since–“The Constitution is what the Supreme Court says it is!”

Elena Kagan Confirmed As Associate Justice Of Supreme Court!

Solicitor General and former Harvard Law School Dean Elena Kagan was confirmed today by a vote of 63-37 to be the newest Associate Justice of the Supreme Court!

Kagan became the fourth woman in the Court’s history, and the second appointment of President Obama! She also became the first non judicial experience member of the Court since William Rehnquist!

She received the support of all Democrats, except Nebraska Senator Ben Nelson! She also received the backing of only five Republicans–Olympia Snow, Susan Collins, Judd Gregg, Lindsey Graham, and Richard Lugar, as compared to the nine Republicans who backed Sonia Sotomayor last year (who won her seat by a margin of 68-32)!

Kagan can be seen as a worthy successor to John Paul Stevens, who served the fourth longest time on the Supreme Court, and she inherits a seat not only occupied by Stevens, but earlier by William O. Douglas (longest serving Justice in history) and Louis Brandeis (often considered the number one or two Supreme Court Justice in history)!

Elena Kagan’s Inheritance: Louis Brandeis, William O. Douglas, And John Paul Stevens!

Supreme Court nominee Elena Kagan went through two full days of questioning by the Senate Judiciary Committee last week, and most observers would say she fared well in her performance!

The members of the committee, and the American people, wanted to know how she thought about constitutional issues, and of course, were disappointed that she refused to tip her hand, just the same as other Supreme Court nominees who did not wish to be tied down to any specific commitments on future issues and cases!

But her background gives hope that she will follow in the tradition of the Justices who held the seat she will gain after confirmation: Louis Brandeis (1916-1939), William O. Douglas (1939-1975), and John Paul Stevens (1975-2010)!

What a distinguished group of Justices these three men were, enough to humble anyone! 🙂 All three are among the very best who have ever served on the Supreme Court. The first two would rank among the top ten of all time, and Stevens would rank in the 25 of all time!

No seat has only had three Justices in the past almost one hundred years, with Douglas being the longest serving Justice in history, and Stevens being third longest serving, only three days fewer than Justice Stephen Field, who served from 1863-1897!

So Kagan has a responsibility to keep this history in mind, as she inherits the seat of these great men, and carries on the progressive tradition they represented, into the future of constitutional law!

Senator Al Franken’s Judgment Of The Supreme Court: NOT “Equal Justice Under Law”!

Senator Al Franken, Democrat of Minnesota, gave a very important speech last week on the Supreme Court’s right wing turn before a progressive legal organization, the American Constitution Society.

He condemned the Roberts Court for favoring corporations over every day Americans, and blamed conservative legal scholars, and the Federalist Society, for promoting the concept of “originalism”, regularly advocated by Associate Justice Antonin Scalia!

The lives of ordinary people matter, but the conservative legal advocates have made the American Civil Liberties Union seem “unAmerican” for backing the rights of the less fortunate and the less powerful in society, Franken declared!

The senator pointed out that Justice John Paul Stevens has said that every Justice appointed after him thirty five years ago, with the exception of Justice Ruth Bader Ginsberg, has been more to the right than his predecessor in the position. The Supreme Court has NOT exercised judicial restraint in its decisions, and instead has been radical in ignoring one hundred years of judicial decisions that limited corporate rights in campaigns and election in its Citizens United case in January!

The Court has decided, Franken declared, that no individual’s rights come above the rights of a corporation to profit and influence! 🙁

A whole century of decisions that gave meaning to the Constitution for labor, women, minorities, immigrants, the poor, and others seen as not having wealth and power, is now under attack!

Progressives, Franken concluded, must fight to create a level playing field, which many may have thought was settled law, but is now under attack by an activist, conservative Court!

In many ways, constitutionally, we are moving backwards a century, and progressives must not sit on the sidelines as the rich and powerful regain their former dominance! Franken is absolutely correct in his assessment, and this is a speech which needs to gain widespread notice!

The Debate Over The Supreme Court Nominee: Elena Kagan Most Likely Choice!

Even before Barack Obama chooses a Supreme Court nominee to replace Associate Justice John Paul Stevens, a furious debate is beginning over what should be the credentials of that individual.

One issue is whether we need religious balance, as when Stevens leaves, there will be no Protestant nominees, despite the fact that half the country is Protestant! In the past, the thought was that there should be a Jewish seat, a Catholic seat, an African American seat, and a woman’s seat. Now we have two Jews, six Catholics, one African American, two women, and even an Hispanic on the Court! So should the nominee be Protestant, as one of the leading candidates, Diane Wood, happens to be?

Then there is the issue of how liberal the nominee should be, as certainly the Supreme Court has become much more conservative over the years, and with a liberal President, one would assume he would choose a liberal nominee. If this is the major factor, then Diane Wood comes across as the most liberal nominee, more than Elena Kagan or Merrick Garland, the other two most mentioned!

Then, there is the issue of whether the nominee should be from outside the judiciary, with Elena Kagan being the one of the top three in speculation who has been a professor, Harvard Law School Dean, and now Solicitor General of the United States, the government’s lawyer before the Supreme Court!

Also, however, there are some who think what is needed is an elected political official, which has put Secretary of State Hillary Clinton, Governor Jennifer Granholm of Michigan, Senator Amy Klobuchar of Minnesota, and Senator Claire McCaskill of Missouri into the speculation! Notice all of these elected officials past or present are women!

So that brings up the idea that with two women on the Court, maybe it should be a man who is selected, but only Judge Merrick Garland is mentioned very much, and he would be regarded as more moderate than Kagan or Wood, at least by reputation!

So what it comes down to is that President Obama must decide what matters most to him. He has made it clear that he wants a person who can make coalitions with others on the Court, as Justice Stevens often did with Sandra Day O’Connor and Anthony Kennedy. That would seem to make Diane Wood or Elena Kagan the best choices! He also wants someone who would make decisions, taking into account the struggles of everyday ordinary Americans. Again, the indications are that Kagan or Wood would be the best choices in that regard!

My prediction is that he will select Elena Kagan, the Solicitor General, a Jewish woman who is liberal but not as controversial as Diane Wood, and who has already been voted upon by the Senate Judiciary Committee for her nomination to be Solicitor General, and who is a person who has not served as a judge, bringing some outside experience from her position now, and her years as a professor and Harvard Law School Dean.

Kagan’s nomination would cause fewer problems in the Senate, and put a woman not yet 50 on the Court, allowing for the possibility of a long term on the bench. She would be an excellent choice, and that is more important than having an elected official, or a Protestant or even a man! 🙂

Associate Justice John Paul Stevens Retires: His Major Impact On The Supreme Court!

Associate Justice John Paul Stevens has announced his retirement after nearly 35 years on the Supreme Court. He leaves as the second oldest Justice at his retirement, only surpassed by Oliver Wendell Holmes.

Stevens also will be leaving the Court with the second longest tenure, only surpassed by the person he replaced, Justice William O. Douglas. He is, at the moment, fourth longest serving, but will pass Chief Justice John Marshall in May, and later, Associate Justice Stephen J. Field in June.

Stevens was appointed by President Gerald Ford, in his only opportunity to select a Supreme Court Justice, and it still stands out as the most lasting contribution that Ford made to the history of the country during his two years and five months as President!

Stevens turned out, as often is the case, to be more liberal than anyone, including Ford, could ever have imagined, and yet, Ford did not, unlike Presidents Eisenhower, Nixon and George H. W. Bush, criticize his Court appointment in public for having turned toward the liberal side of constitutional law. Eisenhower criticized Chief Justice Earl Warren; Nixon criticized Harry Blackmun; and Bush was critical of David Souter.

This fact adds to the growing image of Gerald Ford as a moderate Republican who deserves more credit than he usually gains from historical scholars, as Stevens has had a dramatic impact in so many areas and will be missed!

Stevens led on such issues as gay rights, abortion, affirmative action and limitations on Bush administration policy toward prisoners held as terrorists at Guantanamo Bay Naval Base in Cuba.

He was also a major critic of Bush v. Gore as wrongheaded intervention in a state’s count of presidential election votes, and he condemned the Citizens United case that now allows corporations unlimited rights to spend money on political campaigns, on the basis that corporations are “persons” protected under the First Amendment right to freedom of speech.

Stevens is a very fine person as an individual, highly respected, even by his conservative Court colleagues who disagree with his view of constitutional law. He is a true example of the finest who have been privileged to serve on the Supreme Court, and he will be seen as one of the very best, the top 25, who have served on the Court in its 221 year history!

Justice John Paul Stevens’ Plans To Retire Already Causing Problems!

The first hints by Associate Justice John Paul Stevens that he will retire during Barack Obama’s first term has emerged through an interview with the NY Times.

He makes it clear that he will decide soon whether to retire this summer or in 2011.

Stevens has been on the Court for nearly 35 years, having been appointed by Gerald Ford in 1975.

Stevens has been a very significant justice, becoming more liberal as the years went by, and becoming the leader of the four liberals on the Court as other Justices, more famous and notable than him, left the Court.

Stevens will be 90 this month, and would pass Justice Oliver Wendell Holmes in age next February, so might very well decide to stay one more year to break the age record.

However, if he were to remain through July 2012, which now seems unlikely, he would break the longevity of service record of the person he replaced, Associate Justice William O. Douglas, who served more than 36 years.

Stevens is proof that some senior citizens never lose their edge intellectually and physically, as he is an amazing specimen, who has clearly impacted the Court and promoted limitations on executive power, and has been unafraid to clarify his differences with the Antonin Scalia wing of the Court.

But even as he contemplates retirement, the issue of who would replace him is causing waves in the Senate.

Democratic Senator Arlen Specter suggests that Stevens wait to 2011, hoping for more consensus. However, Republican Senator Jon Kyl hints at a filibuster for any nominee that President Obama might nominate!

Isn’t this great, that even before the Associate Justice announces his retirement, already the Republican party is ready to bottleneck his replacement, as they have done for many presidential appointments, which has led to recess appointments by the President when the Easter break began! 🙁

The problem is there cannot be a recess appointment to the Supreme Court, and lack of a Justice for a long time will impede the ability of the Court to do its work!

But apparently, the Republican party has no concern, but to continue to prevent any progress forward by the Obama Presidency! When will they finally act responsibly and stop the government from operating in the name of the American people? 🙁

The presumption is, if this obstructionism continues, that only the American people, in their hoped for wisdom, will punish the GOP by surprising everyone and NOT awarding major gains in Congress this year to the Republicans.

But precisely for that reason, it would be better from a logistical view, to have Stevens leave now, before a likely gain in seats in the Senate by the Republicans, which would make confirmation of a nominee in 2011 more difficult than even in 2010!

A Different Type Of Diversity Needed On The Future Supreme Court!

The Supreme Court used to be, for the longest time, nine white male Protestants. Now it is very diverse in so many ways: six Catholics, two Jews, two women, one African American, one Hispanic.

With the likelihood that Barack Obama may get two more appointments in this term–with the expected retirement of John Paul Stevens and the poor health of Ruth Bader Ginsberg as factors–it is time to consider a different type of diversity.

Instead of having only Justices who have been judges at the lower court levels, what is needed is people who have been engaged in the political system in other ways–as elected governors, senators, congressmen, mayors–or as cabinet members under Presidents.

In the past, we had such political luminaries as Charles Evans Hughes, Hugo Black, and Earl Warren on the Supreme Court. We had much speculation in the past twenty years that some day Utah Senator Orrin Hatch would be a Republican pick on the Court, and supposedly Maine Senator George Mitchell and New York Governor Mario Cuomo were queried about Court vacancies by President Clinton.

This would be a good trend, to have people on the Court who have experiences different from just judicial experience. There certainly are people in the American political system who could be seen as potential future Supreme Court Justices, and President Obama should use his imagination, when the time comes, to widen the diversity of the Supreme Court in a different direction!

The Supreme Court Membership In Flux

We have a new member of the Supreme Court in the new term about to begin–Justice Sonia Sotomayor.

But we also have some flux evident, as there is the possibility of TWO new appointees by 2010–to replace Justice John Paul Stevens and Justice Ruth Bader Ginsburg.

Justice Stevens is 89 this year, still in excellent health, but by deciding not to appoint new law clerks for more than a year, causes speculation that he may retire next summer, which would mean he would not break the record for longevity or age, which would only occur if he stayed on the Court to the year 2012.

Justice Ginsburg has had colon and now pancreatic cancer, and this week felt faint, and was taken to the hospital, although now she has been released. It is sad to say that most patients who have had pancreatic cancer do not survive for long, although Ginsburg has been given a clean bill of health. Still, the likelihood is that she might leave soon.

So Barack Obama may have two new appointments, and it would seem to me that these retirements after distinguished years of service would be best if they did occur next summer, before the midterm elections, as there may be a smaller Democratic margin after those elections, making a Supreme Court appointment then much more problematical.

While neither justice retiring will change the balance of the Court, it will be good for Obama to pick two fairly liberal justices who would bring comparative youth and vigor to the Court before any possible change of balance in the Senate. So it is hoped that Ginsburg will decide to retire due to her earlier health problems, and that Stevens, despite being therefore unable to break records, will realize that after 35 years on the Court, it is time to go. It is difficult to give up power and status, but it would be good for the Court and the country for this to occur next summer.

Hints Of Another Supreme Court Retirement For Next Summer

There are sudden hints of a possible retirement by the summer of 2010 of Associate Justice John Paul Stevens from the Supreme Court.

Stevens, appointed by President Gerald Ford in his only appointment to the high court in 1975, will have served on the court for 35 years by then, making him close to the longest serving member ever, but not quite, as at least Associate Justice William O. Douglas served 36 years on the Court. Also, Stevens is already the second oldest Justice ever, but if he leaves next year, will not break the record of Associate Justice Oliver Wendell Holmes, who was 91 when he retired.

So the possibility of breaking both records by 2012 might not be possible after all, but the question is why Stevens would be leaving, since he seems in fine health at age 89. We do not know, but we realize that he is not, for the first time, planning more than one year ahead in appointing law clerks, as he has done regularly in the past.

So President Obama might have an appointment just as the election season gets hot next summer for the midterm election. And to top it off, who can say whether Associate Justice Ruth Bader Ginsberg might also leave, by choice or necessity, after having twice had cancer.

Imagine if Obama has TWO appointments soon, likely before the 2012 election, replacing three liberals with hoped for equivalent liberals within one term. There are guaranteed to be battles with the Republicans in the Senate no matter what, but not quite the same as if a conservative were to retire, which is far less likely anytime soon.