Newsletter Feature Story May 2010

Feature Story - May 2010

Public Debate Begins Over President's Second Supreme Court Choice

Veteran U.S. Supreme Court Justice John Paul Stevens announced last month that he will resign when the high court's current term ends this summer. Stevens, who turned 90 in April, was named to the Court in 1975, and has become the third-longest serving justice.

Stevens was considered a centrist by court observers when he was nominated by Republican President Gerald Ford. Stevens' role began to shift following the retirements of liberal Justices William Brennan and Thurgood Marshall. Stevens has been leader of the Supreme Court's liberal bloc for more than 15 years.
Stevens also happens to be the only Protestant on the high court. The Supreme Court is also made up of six Roman Catholics and two Jews.

Stevens' impending departure marks the second time since assuming office last year, that President Obama will nominate someone to the high court, behind Justice Sonia Sotomayor.

The President had words of praise for Stevens.

"When President Ford was faced with a Supreme Court vacancy shortly after the nation was recovering from the Watergate scandal, he wanted a nominee who was brilliant, non-ideological, pragmatic, and committed above all to justice, integrity and the rule of law. He found that nominee in John Paul Stevens.

Justice Stevens has courageously served his country from the moment he enlisted the day before Pearl Harbor, to his long and distinguished tenure on the Supreme Court. During that tenure, he has stood as an impartial guardian of the law. He has worn the judicial robe with honor and humility. He has applied the Constitution and the laws of the land with fidelity and restraint. He leaves his position at the top of his game. His leadership will be sorely missed.

As Justice Stevens expressed to me in the letter announcing his retirement, it is in the best interests of the Supreme Court to have a successor appointed and confirmed before the next term begins (in October).

Once again, I view the process of selecting a Supreme Court nominee as among my most serious responsibilities as President. And while we cannot replace Justice Stevens' experience or wisdom, I will seek someone with similar qualities–an independent mind, a record of excellence and integrity, a fierce dedication to the rule of law, and a keen understanding of how the law affects the daily lives of the American people. It will also be someone who, like Justice Stevens, knows that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens," the President said.

In reviewing Stevens legacy on the high court, observers noted that he, among other things, embraced affirmative action after first questioning it, declared a belief that capital punishment is unconstitutional after first voting to support it, and supported protections for gays and lesbians. In addition, Stevens defended abortion rights and opposed the notion that the Second Amendment guarantees an individual the right to gun ownership.

Steven Shapiro, legal director of the American Civil Liberties Union, praised Stevens' tenure on the high court.

"Justice Stevens was widely perceived as a maverick during his early years on the Court, and just as widely acknowledged as a master tactician during the latter stages of his career. From beginning to end, however, Justice Stevens has been an independent thinker who has been fiercely committed to the rule of the law and the Court's role in preserving it.

The civil liberties legacy of Justice Stevens is deep and broad. He has promoted racial equality, supported gay rights and defended a woman's right to choose. He wrote the first decision recognizing free speech rights on the Internet, and just a few years ago concluded that the death penalty is unconstitutional.

Justice Stevens has earned his retirement, but he will be sorely missed," Shapiro said.

Baptist Joint Committee Executive Director, J.Brent Walker, stated, "Justice Stevens has been a friend of church-state separation. His Establishment Clause jurisprudence has always been strong, having stood uniformly against government-sponsored religious speech and government endorsement of religion.

On balance, Justice Stevens has been a thoughtful, diligent jurist who has served the Court and this country admirably. I trust President Obama will nominate someone who embraces Justice Stevens's understanding of the importance of the non-establishment principles, but who will be willing to permit–or even require–the government's accommodation of religion in appropriate cases, and to respect the autonomy rights of religion and religious organizations," Walker said.
Likewise, Americans United for Separation of Church and State, praised Stevens for "his record of support for church-state separation," and expressed the hope that his replacement will hold similar views.

Americans United Executive Director, the Rev. Barry Lynn, said, "Justice Stevens is an icon–a thoughtful, perceptive justice who understands the role of church-state separation in American life. It is vitally important that President Obama choose a high court nominee who understands that government may not meddle in matters of religion.

The high court is deeply divided on church-state issues. It is imperative that Stevens' replacement be someone who understands and upholds the constitutional mandate of church-state separation."

Lynn pointed out that Stevens voted consistently against efforts to interject religion into public schools and to funnel tax aid to sectarian schools. He opposed government display of sectarian symbols on public property. At the same time, he was an ardent supporter of the free exercise of religion.

A number of conservative organizations issued a warning over the President's nominee to replace Stevens.

Judicial Watch President, Tom Fitton, said, "President Obama needs to replace Justice Stevens with a person who will apply the Constitution strictly, and not substitute their own political beliefs for the rule of law. If President Obama nominates an ‘empathetic' liberal judicial activist, he will have a fight on his hands.

With looming constitutional challenges ranging from Obamacare to new rights for foreign terrorists, the United States Senate should ensure that only a justice who will strictly interpret the U.S. Constitution is approved. Given the stakes, every U.S. Senator should know that the upcoming Supreme Court vote will be as closely watched as their votes on Obamacare," Fitton said.

That view was shared by Concerned Women for America President, Wendy Wright.

"Coming off a debate over health care that has deeply divided the country against President Obama, in which he ignored the Constitution and foisted his contentious beliefs onto millions of Americans, President Obama desperately needs to choose a qualified and Constitutionally-sound nominee. It would be healing for the country for President Obama to change course and select a nominee that respects the Constitution more than their own–or foreign countries'–ideology," Wright said.

Family Research Council President, Tony Perkins, said, "President Obama must now consider carefully, the strong opposition that will result if he nominates a hard-Left jurist. If he selects someone with a radical judicial philosophy, the fabric of our already-divided country will be torn even more.

Since taking office, President Obama has established a horrendous track record by nominating judges who have little regard for the U.S. Constitution. Family Research Council will actively oppose an appointee who wants to impose a Leftist agenda from the nation's highest bench," Perkins said.

American Center for Law & Justice Chief Counsel, Jay Sekulow, stated, "While there's certain to be much debate about Justice Stevens' replacement, there is one thing that is clear–President Obama is likely to name a nominee who will embrace an extremely liberal judicial philosophy.

Make no mistake about it–this appointment really represents more than just replacing one vote on the court. With a replacement who is likely to serve for 30 or 40 years, it's clear this replacement will have a long-term impact on judicial philosophy, and likely play a determining factor in decisions for decades to come," Sekulow said.

Traditional Values Coalition Executive Director, Andrea Lafferty, said, the impending retirement of Stevens is a mixed bag.

"It's good news that he will no longer be free to impose his liberal ideas on Americans through his Supreme Court edicts. But, the bad news is that President Obama will undoubtedly appoint someone equally liberal and far younger who will rewrite the Constitution according to his or her political purposes.

Ultimately, the retirement of Justice Stevens and appointment of a new justice is an even trade.

If President Obama had any honor, he would pick a replacement for Stevens who respects the Constitution, but this is unlikely. He will choose a radical ideologue who will push the Court to the left for decades to come. Obama will replace an old judicial activist with a younger one," Lafferty said.

Rob Schenck, a minister who heads Faith And Action, a Christian outreach to top government officials in Washington, has attended previous U.S. Supreme Court confirmation hearings before the Senate Judiciary Committee.

"As I have in the past, I will go to the hearing room itself to symbolically consecrate the process to the Lord in prayer. Let's remember, ultimately, ‘The authorities that exist have been established by God.' (Romans 13:1) I routinely remind U.S. Supreme Court justices, and everyone else that serves in government, that they are ordained of God to their posts, as I am to mine.

That means each is held accountable to God, as much as to the Constitution, for the discharge of their offices," Schenck said.

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