The search for a new Supreme Court justice

What happened

Political and ideological groups were mobilizing for partisan warfare this week after Supreme Court Justice John Paul Stevens announced his retirement, handing President Obama a rare opportunity to name two justices during the first two years of his presidency. The 90-year-old Stevens is considered the leader of the court’s liberal wing, and Republican senators immediately put Obama on notice that they would oppose and perhaps filibuster any nominee they deem to be a liberal activist. “Every power should be utilized to protect the Constitution,” said Republican Sen. Jeff Sessions. Obama said he intends to nominate “someone who, like Justice Stevens, knows that in a democracy, special interests should not be able to drown out the voices of ordinary citizens.”

A “short list” of potential nominees quickly emerged, and interest groups across the political spectrum began churning out background reports and sounding alarms. The front-runners are said to include Solicitor General Elena Kagan, Homeland Security Secretary Janet Napolitano, and two federal appeals court judges, Diane Wood and Merrick Garland. Obama said he expects the Senate to confirm his choice in time for the court’s next term in the fall.

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What the editorials said

It’s a bad sign when there’s talk of filibustering before a nominee is even named, said The Philadelphia Inquirer. The Republican strategy is transparent: “They’re convinced the path to electoral success in November is to stop Obama at every turn,” and that means pandering to its already riled-up base. But is it asking too much for Republicans to “try to keep an open mind?”

If Republicans are feeling their oats, said The Wall Street Journal, it’s justified. After the grueling fight over health care and several electoral setbacks for Democrats, “the politics will be less than congenial for getting a full-throated liberal through the Senate.” Republicans are simply reminding Obama that as he tries “to lay the groundwork for a future liberal Supreme Court majority,” they will not make that easy for him.

Politics aside, said USA Today, it sure would be nice if Obama nominated somebody who would bring some diversity to the court—and we’re not referring to race or gender. What’s lacking is a “diversity of experience.” None of the current justices has ever been elected to office, had any real business experience, or even much trial experience. Obama would be wise to cast “a very wide net.”

What the columnists said

Obama has already all-but-admitted he’s looking for a liberal activist, said Jonah Goldberg in the Los Angeles Times. Just as when he praised his first nominee, Sonia Sotomayor, for her “empathy,” Obama now wants a justice who would protect “ordinary citizens.” But that’s just another way of saying that rather than following the law, justices should try to set things right. Yes, completely impartial justice is an ideal, but it’s one worth striving for. “If an umpire can’t call each game flawlessly, should he stop trying?”

Here we go again, said Geoffrey Stone in The New York Times. The Right keeps peddling “the myth” that conservatives impartially apply the law while liberals “make up the law.” But the fact is, the Constitution is full of vague terms like “due process” and “freedom of speech,” which judges must interpret, because they simply are not “self-defining.” With remarkable consistency, conservatives interpret them in ways that favor the police, corporations, the wealthy, and other powerful interests. Considering that they nearly always find a way to advance that agenda, isn’t it obvious they are not “disinterestedly calling balls and strikes”?

All this agitation over the Stevens retirement masks a rather mundane reality, said Seth Stern in Slate.com. Not much is going to change. Obama is almost certain to replace Stevens with somebody of the justice’s ideological ilk. But not even an “intellectual giant” such as the late William Brennan could budge Antonin Scalia, Clarence Thomas, and the other members of the conservative block. If anything, said Ruth Marcus in The Washington Post, the court is likely to shift slightly rightward. There’s little in Obama’s record to suggest he “would extend enormous capital” to secure a liberal firebrand. The partisans on both sides are gearing up for a big fight. But Obama may disappoint them all.