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Political Justice

April 10, 2010

Yesterday, Justice John Paul Stevens announced his resignation from the Supreme Court, to be effective at the end of this year’s session, following an admirable 34-year term in which the Court’s rightward shift caused him to emerge as the leader of the Court’s liberal wing. The decision has been on the horizon since the New Yorker profile by Jeffery Toobin and further hinted at in recent interviews in the the New York Times and Washington Post. My favorite retrospective was written by Dahlia Lithwick and Sonja West, who show how Stevens’ empathy was a large part of what made him a worthy and memorable justice, even if conservatives have tried to make empathy a bad word.

In his book The Nine, Toobin, of The New Yorker and also CNN, describes the circumstances that led to Bill Clinton’s appointment of Ruth Bader Ginsburg. After going through six potential appointees, including one who was actually sent to the Senate, Ginsburg was suggested to Clinton by Janet Reno and, after then-Governor of New York Mario Cuomo re-turned down the position (he turned it down, then said he would accept it, then turned it down again – fake out!), appointed and confirmed by the Senate. The general sense in her appointment, Clinton’s first, is one of missteps, disorganization and rush. The broader fact demonstrated by this episode is that the Court is a political body. Clinton didn’t appoint the person he felt most qualified; he appointed the most qualified justice that was also politically feasible.

Later in the book, Toobin spends a series of chapters describing the Court’s conduct during the final days of the 2000 presidential election. A few moments stand out for their political nature. On the night of the election, Justice O’Connor expressed her dismay when Florida was called for Gore, perhaps because she was hoping to retire and didn’t want to her successor to be appointed by a Democratic president. The Court’s ruling, a 5-4 decisions to stop the recount and therefore seal the election for Bush, also limited its import only to the “present circumstances,” that is, “we’re making this decision only for the current political environment – to put Bush in the White House – and aren’t actually making any precedent that can be used later.”

That decision is, of course, in the past. My point, which will be significant in my next post is that the Supreme Court is a political body. Yes, it is more removed from politics than the two other branches of government. Yes, its rulings shouldn’t be directly influenced by politics. Nonetheless, its Justices have viewpoints and ideologies that both affect their opportunity to be appointed and confirmed and their decisions when they are appointed and confirmed. Whoever Obama chooses will likely be chosen as the most politically compatible candidate from a field of extremely qualified (though not equally qualified) colleagues. It will be a political appointment. Ignoring this fact does not have a positive effect on our democracy.

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