With justice retiring, pivotal time for court’s future 

When Justice John Paul Stevens announced last Friday that he was stepping down from the U.S. Supreme Court, it signaled the end of one of the longest tenures in the court’s history: Stevens’ 34 years on the high bench are only two years shy of the record service of his immediate predecessor, William O. Douglas. Like David Souter, who retired last summer, Stevens was a Republican-appointed jurist who migrated left in his years on the court.

Note that Stevens was never a “conservative” as we think of the term today. When Stevens was nominated by President Gerald Ford in 1975, the conservative movement was just beginning. It’s hardly surprising that the Midwestern moderate Stevens would be tapped by the ideologically similar Ford, particularly since the unelected president was filling in for President Richard Nixon and facing a Senate with a hostile Democratic supermajority.

But Stevens also drifted decidedly leftward during his tenure. In 1978, only 14 years after passage of the Civil Rights Act, he wrote that a university affirmative action program violated the law. Two years later, he opined in no uncertain terms that a racial quota program was unconstitutional. By 2003, however, Stevens had switched positions and maneuvered a slim court majority to uphold the aggressive affirmative action program at Michigan Law School.

Court watchers have dubbed this leftward drift — observable in some but certainly not all Republican-appointed justices — the “Greenhouse effect,” suggesting that jurists have tended to bend their positions to those of The New York Times and its former Supreme Court reporter, Linda Greenhouse. In her portrait of Stevens last weekend, Greenhouse herself characterized it more charitably, as “learning on the job.”

Make no mistake: No matter who President Barack Obama selects to replace Stevens, a “reverse Greenhouse effect” simply won’t happen. There’s no modern precedent for a Democrat-appointed justice drifting rightward, and Obama — himself a trained lawyer and former academic legal lecturer — understands the stakes at play.

None of this means, however, that the Judiciary Committee show trials about to ensue are a useless exercise. Even if confirmation is all but assured, a robust and thorough exercise of the Senate’s constitutional “advice and consent” role is of vital importance. Stevens’ lengthy service itself serves as a necessary rebuttal to the shallow argument that Obama’s choice of successor “doesn’t matter” because the “court balance” will not be affected.

Moreover, the upcoming hearings offer a rare opportunity to educate the broader public about the proper role of judges, statutory and constitutional interpretation, and litigation in America. This year, the education process couldn’t come at a better time. Public Citizen and hosts of left-wing activist groups have been demagoguing the court’s Citizens United campaign-finance decision, joined by several Democrat politicians including the president himself.

And hot-button issues surrounding campaign finance, guns, race and abortion are hardly the only important items on the judicial landscape. Tort litigation consumes about 2 percent of our economy, and Supreme Court decisions regularly expand and contract opportunities for the lawsuit lobby. Stevens often has been a key swing vote on one side or the other of the off-the-front-page legal decisions that tip the balance between fees for lawyers and jobs for hard-working Americans.

As did Justice Sonia Sotomayor, the president’s forthcoming nominee will necessarily dodge the hard questions and obfuscate her own past writings and comments that prove controversial. But the questions still need to be asked. Let’s hope that senators ask the right ones — and that the public listens.

James R. Copland is director of the Center for Legal Policy at the Manhattan Institute.

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James R. Copland

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