Friday, April 09, 2010

Justice Stevens

Justice John Paul Stevens, the oldest member of the United States Supreme Court, said he will retire at the end of the Court's term this June, giving President Barack H. Obama one more opportunity a second chance to shape its direction.

In at least two respects, Justice Stevens did the president and the progressives that voted for him a favor. By leaving at the end of this term, he provides the president an opportunity to nominate a solidly liberal justice who will uphold our civil rights before voters go to the polls in November. Had Stevens retired next year, the president might have settled for a candidate whose civil rights credentials were not as strong since the Republicans are poised to gain a few seats in the senate.

The announcement also provides the Democrats with an opportunity to re-establish its ties with the progressive base that shows up at the election booth. The party's relationship with the progressive community soured as the president and his allies on Capitol Hill shifted towards the center.

The president's latest decision to provide for more offshore drilling as well as his decision to permit more nuclear power plants, has disappointed environmentalists hoping to see our national energy production directed elsewhere. Gay American bloggers were enraged when the president defended the misnamed "Defense of Marriage Act" using talking points that one would expect from the Family Research Council or the Alliance Defense Fund. And liberals in general were less then thrilled when they saw the president drop his support for the "public option" even before negotiations over health care reform got underway.

Here there is a clear divide between those who want the Supreme Court to at least preserve if not build upon rulings that recognized the civil rights and liberties of all American citizens and those who believe that the Court should return the debate over these rights to the states as long as they were not explicitly written into the Constitution.

Democratic voters will be more inclined to vote in the midterm elections if the president and the Democrats on the Hill fight for the nominee that will vote to uphold our right to privacy on any number of issues, from contraception and abortion to the issuance of warrants and warrantless wiretaps.

They might be more inclined to vote in the upcoming elections if the Democrats vote for a nominee who will uphold civil rights legislation like the Lilly Ledbetter Act or the Employment Nondiscrimination Act that has yet to be passed by the House and Senate and then signed into law by the president. They might get out the vote if they believe that his nominee will be more inclined to impose huge fines on companies that flout environmental laws and they might get out of the vote if they believed that the justice will vote to uphold legislation that was signed into law, like the Matthew Shepherd Act or the recently passed health care reform bill.

We cannot expect a nominee to answer these questions during the senate hearings which must commence as soon as the president announces his nominee for Justice Stevens' seat but legal scholars and reporters will read between the lines in their statements in order to see how they think about these issues.

Justice Stevens has served the United States well. He started his tenure on the court as a conservative but his position shifted to the left, most prominently on affirmative action and the death penalty. Those of us who are gay will remember that he sided with us from the very beginning. He authored one of the two dissenting opinions in Bowers v Hardwick, and eventually saw the Court embrace his position seventeen years later.

Civil libertarians will appreciate his support for the detainees held at Guantanamo Bay Naval Base at a time when the people in this nation fear giving them any of the rights they themselves take for granted. He knew that our rights were not really protected unless they were defended when invoked by those we like the least.

Obama would serve himself well if he would nominate a justice whose ideological viewpoints and skills of persuasion matched the man he is replacing.

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