Justice Stevens to Retire Soon

[Kepor]

http://www.reuters.com/article/idUST...edName=topNews

Justice John Paul Stevens plans to retire either at the end of this term or the next.

And... yeah. That's all I can really think to say on this right now. I understand why, but it still feels an incredible loss.

I dunno. Discuss, I guess.

[Solid Snake]

It'd seem like a much bigger deal if he were retiring prematurely (as some argued Souter did) or if he chose to retire during a Republican administration. As is, though, the plain facts of the matter are that he's well beyond retirement age (even by Supreme Court standards) and he's served an incredibly long time on the court. His loss won't shift the court's ideological perspective as Obama will replace him with a fellow liberal.

Stevens was, however, an extremely gifted diplomat insofar as he was able to convince moderates like O'Connor and Kennedy to join him in some past decisions. Obama could make a huge mistake by treading too far left with his nomination to replace Stevens, creating an increasingly polarized court and hurting the left's chances of courting Kennedy for those huge 5-4 decisions.

My guess is Breyer fills the void Stevens leaves behind and effectively leads that faction of the Court (Ginsburg is too soft-spoken and Sotomayor is a rookie.) I like Breyer a lot; though I frequently disagree with him (he's very much pro-federal government power, much moreso than even Stevens, so there will be a shift against libertarian ideology there) he's very assertive and quite clever in oral arguments. However, Breyer is also the most openly combative left-wing member of the Court, eager to take on the likes of Scalia, Thomas and Roberts. That's either a very good thing (if you're a progressive who wants the left to have a louder voice in those 5-4 dissents) or a very bad thing (if you're a progressive who's worried that this development will prevent Kennedy from joining in liberal interpretations, as Stevens was huge in potentially swaying Kennedy before.)

In short: Stevens' retirement increases the odds that you'll see classic 5-4 conservative / liberal split decisions (with the conservatives winning those battles.) The schisms might grow deeper. Stevens has a huge reputation as a liberal on the court, but he wasn't quite as liberal as progressives like to paint him as; if Obama missteps by dipping too far left, he might further isolate liberals on the Court. On the other hand, if Obama settles for a moderate or a relative unknown, you could have reverse-Souter (stealth conservative) and that'd really fuck up the Court.

None of this is really remotely as interesting as what would happen if one of the conservative members of the Court were to leave us. If Kennedy in particular were to pass away or retire, Obama would have a huge opportunity; since Kennedy was known as a moderate swing vote, Obama could nominate a replacement who would simply be far more likely to swing the liberals' way on the Court, and conservatives would have a difficult time of objecting.

What's really intriguing but potentially far more hazardous is what Obama could or should do if a big-time conservative like Scalia or Thomas passes away (I doubt they would retire.) Replace them with even a likable moderate and conservatives would be up in arms. Attempt to replace them with a liberal progressive and the Tea Party / Fox News / Republicans would go apeshit. I'd see that as far more potentially devastating to the country's long-term health than this Health Care debate.

On the flip side, if Obama panders to conservatives by electing a member of the Federalist Society, he won't win many brownie points with the Fox News crowd (they'll look for reasons to hate him anyway) but progressives will be disenchanted. Obama effectively loses either way; either he sparks outrage and condemnation for brazenly shifting the ideological balance of the Court in a way never before seen, or he sparks outrage and condemnation for allowing the 5-4 conservative advantage to persist. I wouldn't want to be him in any of those circumstances. The ultimate irony is that Obama is probably hoping and praying for Scalia and Thomas' health as much as conservatives are, though for wildly different reasons. For him it's pure pragmatism. He'd prefer they pass away around 2013, when he's won his second term and conservative outcries (or depression among liberals) won't cost him a future election.

EDIT: It's only after typing this post that I've realized how much law school changes you; all these kinds of discussions are constants in my Constitutional Law class, and every one of them brazenly and matter-of-factly talks about the ramifications of Justices 'passing away' without once reminiscing on the lives lost.
...Just a part of the profession, I suppose.

[POS Industries]

Originally Posted by Solid Snake

What's really intriguing but potentially far more hazardous is what Obama could or should do if a big-time conservative like Scalia or Thomas passes away (I doubt they would retire.) Replace them with even a likable moderate and conservatives would be up in arms. Attempt to replace them with a liberal progressive and the Tea Party / Fox News / Republicans would go apeshit. I'd see that as far more potentially devastating to the country's long-term health than this Health Care debate.

On the flip side, if Obama panders to conservatives by electing a member of the Federalist Society, he won't win many brownie points with the Fox News crowd (they'll look for reasons to hate him anyway) but progressives will be disenchanted. Obama effectively loses either way; either he sparks outrage and condemnation for brazenly shifting the ideological balance of the Court in a way never before seen, or he sparks outrage and condemnation for allowing the 5-4 conservative advantage to persist. I wouldn't want to be him in any of those circumstances. The ultimate irony is that Obama is probably hoping and praying for Scalia and Thomas' health as much as conservatives are, though for wildly different reasons. For him it's pure pragmatism. He'd prefer they pass away around 2013, when he's won his second term and conservative outcries (or depression among liberals) won't cost him a future election.

So, basically, he's in the same position with this issue that he's been in with every other thing he's had to do in his presidency, wherein his choices are piss off conservatives by doing the liberal thing or piss off liberals by trying to compromise with conservatives, who aren't actually going to work with him anyway no matter how much he tries to appease them, which ends up with everyone hating him.

Welp, here's hoping against all odds that he can at least count on the Democrats to not be total fuckwads if he decides to go ahead and do the liberal thing this time.

[Solid Snake]

Originally Posted by POS Industries

So, basically, he's in the same position with this issue that he's been in with every other thing he's had to do in his presidency, wherein his choices are piss off conservatives by doing the liberal thing or piss off liberals by trying to compromise with conservatives, who aren't actually going to work with him anyway no matter how much he tries to appease them, which ends up with everyone hating him.

That partisan argument may seem strong, but consider this: if Obama does 'the liberal thing' as you hope, and in 2012 or 2016 a Republican becomes President, would you want a Republican to feel free to cite Obama as precedent to appoint conservative justices to replace retiring (or dying) liberals?

...My guess is you'd feel appalled by the notion.

I'm against the notion of Democrats conceding to conservatives on certain issues (most notably the environment) but when it comes to procedural safeguards I have a slightly different perspective. Truth is, there's a reason why past administrations have generally attempted (within reason) to appoint decent matches to replace outgoing Justices, and it has to do with preserving the judiciary from brazen executive manipulation. If Obama were to start a new precedent of appointing only ideological bedfellows to the bench regardless of the philosophy of the Justice lost, we'd only continue to heighten the partisan divide in such a way that would have devastating consequences whenever the opposing party controls the White House.

And Obama's chances for reelection would be absolutely crushed by appointing a liberal justice to replace a conservative one -- conservative groups would be far more enraged by that action than any executive policy implemented in regards to issues like the environment (or even health care.) Electing an ideological comrade might benefit Obama in the judiciary, but it could dearly cost him (and Democrats in general) in the polls.

The strongest and most pragmatic move by Obama would be to replace a right-winger like Scalia or Thomas with someone who seems conservative, or at least holds conservative values in some traditional areas of thought, but trends slightly more moderate in other, less notable legal doctrines. A new Kennedy or a new O'Connor, say, to replace someone like Justice Thomas. That'd have the effect of gradually marginalizing conservatives on the Court without being so obvious as to risk control of Congress or the Presidency. Conservatives would lack an easy methodology to attack the candidate or galvanize its base.

Ironically, Obama would also benefit from continuing the tradition of electing white men to replace conservatives on the court (particularly Thomas), thus reinforcing the notion that conservatives all fit certain gender and ethnic stereotypes. I'm not sure if he'd go that far, but I wouldn't be shocked if he did. (After all, the majority of available candidates that fit the bill would be white men, anyway.)

On the other hand, if someone like Kennedy retires or passes away, I think then it's much more reasonable for Obama to use the opportunity to shift the court left. Kennedy was never a solid conservative vote, and he was never a card-carrying member of the Federalist society.

If it were Scalia or Thomas that left the Court, though, I wouldn't want to be Obama. Regardless of the decision he'd make, he'd be in the crosshairs. (Potentially literally, as well as metaphorically.) As I said earlier, if there's anyone who's praying for Scalia and Thomas' health, at least in the short-term, it's Barack Obama...as surprising as that may sound.

(Everything changes once Obama potentially wins re-election, though. If such an event were to happen at the end of his Presidency, Obama would be in a much better position to effectively sacrifice his remaining political agenda in order to preserve his legacy by re-balancing the court. After winning reelection, he'd have a much stronger argument that the changing electorate supported the change and there'd be no chance he'd be rebutted by the 2012 elections. Obama's immediate goal has to be to last to 2012, though, and I suspect that replacing Thomas with another Sotomayor would be the easiest way to condemn him and the Democratic party to extraordinary losses.)

[Kim]

The current conservative/republican party is actively against the best interests of the nation and its people. More democrats/liberals the better, assuming they can grow some goddamn balls, because if we can get some actual damn reform in, the republicans/conservatives will have a hell of a time getting rid of it, and will look worse for trying.

[bluestarultor]

Yeah, hey, Snake? Please cite a president who's directly put in a justice with an opposing political viewpoint just to preserve the status quo. Presidents ALWAYS find a way to pad the bench. Maybe not directly, but in some way. In fact, I think the biggest deviation of this is when one justice was appointed because a conservative president thought he was in bed with him and it turned out the guy was TOO conservative and cockblocked some conservative legislation because it meant bigger government. My memory's hazy on it, so forgive me. The point being that if you're not trying to keep some semblance of your term in place to mess up all the work of the opposing party for years to come, you're doing it wrong.

Besides, Obama really doesn't need to cater to conservatives at this point. They're going to hate him no matter what. Fortunately, the Republican party is a sinking ship and the rats are jumping (this metaphor is not intended to call conservatives rats), so there are plenty of centrist and liberal people to cater to who will enjoy the attention.

[POS Industries]

Originally Posted by Solid Snake

That partisan argument may seem strong, but consider this: if Obama does 'the liberal thing' as you hope, and in 2012 or 2016 a Republican becomes President, would you want a Republican to feel free to cite Obama as precedent to appoint conservative justices to replace retiring (or dying) liberals?

...My guess is you'd feel appalled by the notion.

No, I'd pretty much feel that it was how every president ever has done it. And, honestly? The fact that Obama has been bending over backwards to get conservatives to work with him is precisely why his reelection is in such potential jeopardy at the moment. The left is, on the whole, all the man has, and he has so far done little to keep it in favor of trying in vain to win over people who will never support him.

I mean, I'm not saying he needs to put a hardline, uncompromising liberal up for nomination, but to put a conservative of any nature up for the job will accomplish nothing in terms of the spin against him. He could nominate Glenn Beck and Glenn Beck himself would go on TV and blast Obama for nominating that communo-fascist America-hater Glenn Back to further his radical left wing agenda. He cannot win with these people no matter how hard he tries, and the people who follow them will not listen to reason. It's time he stopped trying.

[Solid Snake]

I love how sometimes I'm absolutely shocked to find that something I've said that I consider not remotely controversial is actually, well, apparently incredibly controversial.

Originally Posted by POS Industries

No, I'd pretty much feel that it was how every president ever has done it.

http://jurist.law.pitt.edu/forum/sym...-jc/balkin.php

Court-packing with ideological allies is neither a recent development nor has it always been the way the process has worked, and some Presidents (Roosevelt) have relied on using the judiciary as an ideological device to further policy initiatives more than others (Eisenhower.)

Personally, I'm very much against the notion that the judiciary branch should be a political instrument. Their role is to interpret the Constitution and follow the black-letter laws of the United States, not to push their desired policies. The sign of a true Justice is the ability to make a decision against one's own political beliefs, yet in correspondence with the law: it always impresses me when, say, a conservative Justice rules in favor of abortion rights (despite a personal position against it) or a liberal Justice rules against an over-broad interpretation of the Necessary and Proper Clause. That always impresses me because it's how judges should act; as mere interpretative agents digesting and espousing the law as it is written, not openly advocating what they think is justice over those rules set in stone. The latter is destructive subjectivist bullcrap that leads to thousands of ever-changing definitions of "wrong" and "right" that fit the particular thoughts of any particular Justice at any particular time.

Of course, this works both ways, and these days I find myself equally disappointed with the conservative and liberal factions of the Court, who are too busy fighting policy battles as if they were Congressmen to remember that they're actually Judges and that their personal opinion on a particular subject isn't worth shit.

Anyway, my point is this: Obama (and his liberal supporters) can respond to the bullshit advocated by the Tea Party and recent autocratic, horrifyingly partisan decisions made by the likes of George W. Bush by:
1) Joining them by implementing their exact methods against them, or
2) Standing above the fray and actually acting like the dignified statesmen and better politicians they claim to be.

The former may be politically expedient, but you won't beat the Republicans by joining them. You'll simply become the left-wing, progressive version of the Republicans, and leave moderates and independents throughout the country utterly disenchanting. And if you indulge in hyper-partisanship with a Democrat in office, don't you forfeit your right to complain about the effects of hyper-partisanship when a Republican takes the Democrat's place? To what extent are you now forgetting the very arguments you made prior to the 2008 elections?

The best possible solution isn't one brand of partisanship over the other, it's a system of governance where neither side is excessively partisan or unnecessarily divisive. We've been there before. (See: Democrats and Republicans in the 1970s, particularly post-Nixon, though even Nixon was surprisingly moderate compared to Reagan and Bush II. Nixon's bad rap stems from his arrogance and lust for power, but in power he was fairly centrist. Eisenhower, Nixon and Ford would all probably be called Democrats today.)

[Kim]

Except I actually want the liberals to be partisan and whatnot so long as they actually get some reform done. The difference between the Republicans and the Democrats is that the Democrats don't seem to have their heads quite as far up their asses. When the Republicans stop being violently opposed to socialized health care, stop being opposed to gay marriage, stop trying to continue Don't Ask Don't Tell, and just generally grow the fuck up, then maybe I'll consider bipartisanship a thing that should happen.

[Wigmund]

Originally Posted by Solid Snake

I love how sometimes I'm absolutely shocked to find that something I've said that I consider not remotely controversial is actually, well, apparently incredibly controversial.

What controversy? You're just saying that it would be for the best if Obama replaced judges with more moderate ones. Meanwhile everyone else here (myself included) think the President should grow a pair, go bounce them off the heads of the leading Republicans, and nominate more liberal justices so we don't have to worry about stupid shits like Scalia, Thomas, and Alito.