- The Washington Times - Monday, April 12, 2010

The pending retirement of Supreme Court Justice John Paul Stevens has set the stage for an ideological battle heading into the midterm elections, with President Obama getting another chance to put his mark on the court and Republicans preparing to use the nomination to highlight the differences between the two parties.

In the hours after Justice Stevens announced his retirement on Friday, lawmakers on both sides of the aisle called for a fair and thoughtful confirmation process for Mr. Obama’s pick, but seeds of a rift have already been sown.

“Are Dems really up for another fight, especially over a liberal, when they’ve been bleeding independents for a year and not talking about jobs?” said one GOP aide speaking on the condition of anonymity.

But it remains to be seen what type of fight the Republicans will put up in the face of a persistent perception that it has become an obstructionist party, particularly because Mr. Obama’s nominee is unlikely to change the ideological makeup of the court. Justice Stevens, the stalwart of the court’s liberal wing who will step down when the court’s term ends in June, will almost certainly be replaced with another liberal.

Sen. Jeff Sessions, Alabama Republican and ranking member of the Senate Judiciary Committee that will hold the nomination hearings, isn’t ruling out pursuing a filibuster if the nominee’s judicial philosophy is outside the “mainstream” and leans toward making law, not interpreting it.

“I hope I will be able to support the individual selected by the president, as I have a majority of his judicial nominees,” Mr. Sessions said. “But, as I have said before, I cannot and will not vote for a nominee with a record that fails to demonstrate a commitment to the Constitution, the rule of law and the oath of a judge.”

And Senate Minority Leader Mitch McConnell, Kentucky Republican, says the GOP will make a stand for “judicial restraint and the fundamental importance of an even-handed reading of the law.”

The rumored list of potential replacements includes Solicitor General Elena Kagan, 50; Diane Wood, 59, a judge on the 7th U.S. Circuit Court of Appeals in Chicago; and Cass Sunstein, 55, a White House lawyer.

Mr. Obama’s first pick for the Supreme Court, Justice Sonia Sotomayor, was easily confirmed with a 68-31 Senate vote that came after hearings that were largely drama-free, and Republicans on Friday didn’t specifically indicate they were expecting a fight over Mr. Obama’s nominee.

Calling for thoughtful and civil discourse, Sen. Patrick J. Leahy, Vermont Democrat and chairman of the Senate Judiciary Committee, on Sunday predicted Mr. Obama will quickly make his nomination, ensuring the newest justice will be on the high court by the start of its next session in October.

“The decisions of the Supreme Court are often made by only five individuals, but they impact the daily lives of each and every American,” Mr. Leahy said. “All senators should strive to fulfill their constitutional duty of advise and consent, and give fair and thorough consideration to Justice Stevens’ successor.”

In 2005, when Democrats were in the minority in the Senate and some of President George W. Bush’s picks for the federal bench were stalled, a group of 14 centrist Republicans and Democrats agreed not to prevent a vote on judicial nominees except under extraordinary circumstances. Exactly what constituted such circumstances was not part of the compromise.

With the election in January of Sen. Scott Brown, Massachusetts Republican, erasing the Democrats’ filibuster-proof majority, Republicans could unite to block a vote on the next confirmation if all 41 Republicans were to agree. Nine Republicans voted for Justice Sotomayor.

Michael Dorf, a Cornell Law School professor and Supreme Court expert, said Justice Stevens, who turns 90 this month, is the “unquestioned leader of the liberal wing of the court.”

Nominated to the court by President Ford, Justice Stevens took his place on the bench in 1975. In the early part of his career, he was a centrist-to-liberal jurist who occasionally wrote quirky opinions, such as beginning a 1986 dissenting opinion with “Frankly, my dear, I don’t give a damn,” a quote from the film “Gone With the Wind.”

“I think scholars will probably debate how much Justice Stevens drifted to the left over the course of his career and how much the court just changed,” said Mr. Dorf, who met Justice Stevens while working as a clerk for Justice Anthony M. Kennedy during the court’s 1991 term.

In 1978, Justice Stevens wrote the opinion on the landmark Federal Communications Commission v. Pacifica Foundation case, which defined the FCC’s power over what could be broadcast. The case stemmed from a New York City radio station that played comedian George Carlin’s routine about the seven words that cannot be said on television.

Justice Stevens decision gave the FCC authority to determine what couldn’t be broadcast, especially during hours when children may be watching or listening.

Mr. Dorf said the decision was not an especially liberal or conservative opinion, but showed Justice Steven’s pragmatism in applying the law to the real world.

While Justice Stevens is generally considered a free-speech liberal, Mr. Dorf noted that the World War II Navy veteran wrote dissenting opinions in 1989 and 1990 cases that struck down prohibitions against flag burning. Justice Stevens wrote about the importance of the flag as a symbol of American ideas that should not be desecrated.

“Stevens had about him a kind of old-style patriotism,” Mr. Dorf said.

In recent years, Justice Stevens wrote the majority opinion in a case that struck down as unconstitutional the military tribunals set up by the Bush administration to prosecute detainees at Guantanamo Bay.

This story is based in part on wire service dispatches.

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