by Jules Witcover

Of all nine Justices on the Supreme Court, the one President Obama can least afford to see leaving will be doing just that -- John Paul Stevens, who will reach age 90 next week.

One might reasonably conclude that, at 90, retirement from the very taxing duties of the court is long overdue. But Stevens, as a man of nimble mind and body who still plays tennis often, has been a voice of particular influence and persuasion in his nearly 35 years on the bench.

In his later years especially, Stevens has been the court's liberal stalwart, though he was a Republican when first appointed a federal appellate judge by Richard Nixon in 1970. He was elevated to the highest bench in 1975 by another Republican president, Gerald Ford, replacing one of its great liberal Democrats, William O. Douglas.

The Court is dependably conservative today after the two George W. Bush appointments of Chief Justice John Roberts and Samuel Alito, joining Antonin Scalia, Clarence Thomas and Anthony Kennedy. So the practical imperative of judicial balance demands that Obama now name another staunch liberal.

Yet the president seemingly has a natural tendency for the pragmatic and the conciliatory approach rather than the confrontational, as seen through most of the long health-care reform fight. Speculation is already stirring that he will settle for someone less so, even an ideological middle-roader.

That would be taking the line of least political resistance against the Republican minority in the Senate that with 41 members can now credibly threaten a filibuster against a strong liberal appointee. But now that Obama has scored turnabout victory on health care, he should not flinch from bringing some greater equilibrium to the Supreme Court.

For once, matters of race, gender and ethnicity should not cloud the president's considerations in this opportunity to counter its rightward shift engineered by the three most recent Republican presidents, Ronald Reagan and the two Bushes.

Stevens, along first with liberal William Brennan and later with Steven Breyer and Ruth Bader Ginsberg, strove to curb some of the worst excesses of the conservatives. And when he failed in the most significant case of all -- the decision that delivered the Oval Office to the junior Bush in the 2000 ruling on the Florida recount -- the Stevens dissent spoke most pointedly of its damaging significance.

He wrote the decision demonstrated "an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed," which could "only lend credence to the most cynical appraisal of the work of judges throughout the land."

Stevens concluded: "It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today's decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law."

Nearly a decade after that decision, the Supreme Court has yet to reestablish its credibility with many Americans, and no single new appointment to the court is liable alone to achieve that objective. But Obama should not shy away now from making one what will send a clear message, particularly to progressives in his own party, that the direction of the court also needs the change he promised in 2008.

Actuarial charts offer Obama only limited prospects to bring about a major shift through appointment. The next oldest justice, liberal Ruth Bader Ginsberg, at 77 has had health problems, but her departure would only repeat the president's current challenge of replacing one liberal with another.

The next senior on the court, Scalia, is 74 and as the anchor of conservative jurisprudence among the nine isn't considered, health permitting, likely to depart even in a second Obama term. So it's all the more critical that this president of liberal inclinations not settle now for an ideological middle-roader to succeed Stevens.

 

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Replacing Justice Stevens | Politics

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