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Stevens Makes It Official

[ 22 ] April 9, 2010 |

No huge surprise here, but John Paul Stevens will be resigning this summer. [UPDATE: more from Liptak.]  I hope Obama will consider that since 1916 this seat on the Court has been held by three-just-three giants: Louis Brandeis, William O. Douglas, and Stevens. (And, personally, I’d prefer a throwback to someone like Douglas, as it says something that a moderate Republican has become the leader of the Court’s liberal wing.) I’ll have more about possible replacements as well as some of JPS’s greatest hits over the coming weeks. Let’s start with his short, classic concurrence in Carhart I:

Although much ink is spilled today describing the gruesome nature of late-term abortion procedures, that rhetoric does not provide me a reason to believe that the procedure Nebraska here claims it seeks to ban is more brutal, more gruesome, or less respectful of “potential life” than the equally gruesome procedure Nebraska claims it still allows. Justice Ginsburg and Judge Posner have, I believe, correctly diagnosed the underlying reason for the enactment of this legislation–a reason that also explains much of the Court’s rhetoric directed at an objective that extends well beyond the narrow issue that this case presents. The rhetoric is almost, but not quite, loud enough to obscure the quiet fact that during the past 27 years, the central holding of Roe v. Wade, 410 U.S. 113 (1973), has been endorsed by all but 4 of the 17 Justices who have addressed the issue. That holding–that the word “liberty” in the Fourteenth Amendment includes a woman’s right to make this difficult and extremely personal decision–makes it impossible for me to understand how a State has any legitimate interest in requiring a doctor to follow any procedure other than the one that he or she reasonably believes will best protect the woman in her exercise of this constitutional liberty. But one need not even approach this view today to conclude that Nebraska’s law must fall. For the notion that either of these two equally gruesome procedures performed at this late stage of gestation is more akin to infanticide than the other, or that the State furthers any legitimate interest by banning one but not the other, is simply irrational. See U.S. Const., Amdt. 14.

Comments (22)

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  1. cleter says:

    Well, I’m sure whoever Obama nominates will be as bad as eleven Hitlers, so Republicans should just go ahead and start filibustering.

  2. rea says:

    There goes the last of the decent, moderate Republicans–after he dies, maybe they’ll have him stuffed and put on display at the Smithsonian, between the dodo and the passenger pigeon

  3. cer says:

    I am pleased that Obama will have a wealth of riches from which to choose, not so pleased that this battle will take place the summer before midterms guaranteeing that the GOP will be as frothing and stupid as possible.

    And I think it is a real shame that Stevens never grasped the important legal principle that “If I find it gross, it ought to be illegal,” a rule I believe ought to be applied to Ben Nelson’s hair, Vh1 reality shows, John Boehner’s tan, and Uggs.

  4. JW says:

    I got beat to the punch. My first thought was that Obama could nominate the ghost of Hans Frank and still be accused of catering to America’s commie sympths.

  5. dave3544 says:

    The Republicans are going to filibuster.

    And the Democrats are going to threaten to use the nuclear option.

    And Democrats are going to be called hypocrites by the media.

    And there will be a big meeting between the four most moderate Dem Senators and four rabid GOP Senators and they are going to come up with a compromise.

    And that compromise is going to recognize that the Democrats just don’t have the 60 votes it takes to confirm a nominee to the Court and so Obama will be forced to withdraw his nominee or he’ll have to promise the GOP will get to select four or five appellate justices.

    That’s about how this will go, right?

  6. Glenn says:

    Stevens as a “giant,” huh? It’s kind of interesting to see that description, and I’m not necessarily disagreeing. But Stevens used to be the sort of wacky Justice who’d issue lone dissents on some tangent no one else cared about. That he became the “giant” of the liberal wing says as much about the liberal wing as about Stevens, although I think it’s undoubtedly true that he grew mightily in his ability to pull together support for his positions.

  7. larryb33 says:

    I certainly would not count on someone in the same vein as William O. Douglas.

  8. mark f says:

    I’m pretty sure it was Stevens who pointed out that each of the sitting justices*, including himself, were to the right of their respective predecessor. What are the odds of that trend being broken.

    *I think this was before Souter retired and maybe even before Alito joined the Court. So at best it remains eight moves right and one tie.

  9. mds says:

    (And, personally, I’d prefer a throwback to someone like Douglas, as it says something that a moderate Republican has become the leader of the Court’s liberal wing.)

    Personally, I’d prefer a tame flying unicorn that poops gold coins to appear in my garage. I think my preference is slightly more likely than yours.

    Then again, Senate Democrats did “keep their powder dry” over far-right authoritarian nominee Samuel Alito, so that will surely smooth the passage of a Democratic president’s liberal nominee through a Democratic Senate.

  10. Dave Brockington says:

    Well, that’s the book closed on the Ford administration and its legacy.

  11. Ed says:

    Then again, Senate Democrats did “keep their powder dry” over far-right authoritarian nominee Samuel Alito, so that will surely smooth the passage of a Democratic president’s liberal nominee through a Democratic Senate.

    Democrats never learn. Never. Well, they did succeed in keeping that nutjob Bork off the Court back in the day.

  12. Glenn says:

    Jesus, what is Liptak smoking?

    Justice John Paul Stevens, who announced his resignation from the Supreme Court on Friday after 34 years, may be the last justice from a time when ability and independence, rather than perceived ideology, were viewed as the crucial qualifications for a seat on the court. He was nominated by President Gerald R. Ford in 1975, who said all he wanted was “the finest legal mind I could find.”

    That manages to be both completely insulting to the current Justices (ex Stevens) and utterly naive about the previous ones. Gimme a break.

  13. [...] Stevens Makes It Official : Lawyers, Guns & Money [...]

  14. [...] the dubious premise that there is even is such a thing as a “liberal” wing).  As Scott Lemieux notes, this is the seat which, since 1916, has been held by only three Justices, three of the great [...]

  15. [...] the dubious premise that there is even is such a thing as a “liberal” wing).  As Scott Lemieux notes, this is the seat which, since 1916, has been held by only three Justices, three of the great [...]

  16. [...] the dubious premise that there is even is such a thing as a “liberal” wing). As Scott Lemieux notes, this is the seat which, since 1916, has been held by only three Justices, three of the great [...]

  17. [...] the dubious premise that there is even is such a thing as a “liberal” wing). As Scott Lemieux notes, this is the seat which, since 1916, has been held by only three Justices, three of the great [...]

  18. [...] dubious premise that there is even is such a thing as a “liberal” wing).  As Scott Lemieux notes, this is the seat which, since 1916, has been held by only three Justices, three of the great [...]

  19. [...] the dubious premise that there is even is such a thing as a “liberal” wing).  As Scott Lemieux notes, this is the seat which, since 1916, has been held by only three Justices, three of the great [...]

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