Justice Stevens rejects the idea that legal expertise is the reason why judges have the last word on the meaning of the Constitution.

The retired Justice is reviewing Sanford Levinson's new book "Framed: America’s Fifty-One Constitutions and the Crisis of Governance."  Levinson has offered 3 different reasons why judges have this role in our system of separated powers:

[F]irst, that they are experts in the law in the same way that rocket scientists have a field of expertise; second, that they are gifted with exceptional wisdom; or third, that the terms of their office liberate them from “political” constraints. He correctly rejects the first answer because the number of dissenting opinions belies the suggestion that there is only one permissible answer to the kind of question that courts consider. He correctly rejects the second answer because he agrees with Justice Holmes that “the life of the law is not logic, but experience.” While he concludes that the third answer depends on one’s views about the empirical consequences of election of judges, in my judgment, he accurately identifies the controlling criterion in this sentence: “Life tenure and the liberation from political accountability would remove certain incentives that lead ordinary leaders to betray the public good.”

How can the Supreme Court escape from the perception that it's partisan?

Lawprof Barry Friedman is working on the theory that people have lost trust in the Court (or so the polls show) because they perceive the Court as political. (Friedman stresses that politics is different from ideology, ideology being something one actually believes in.)

Okay, so if the Court cares about the public's disapproval and wants to do something about it — which would be, ironically, political — then the Court should work to deflect the perception that it is political.

Well, then, the question becomes why do people perceive the Court as political? One answer is: Because it is political. In which case, people should be congratulated for their perceptiveness. Nice going, people. You are not dupes. But that's me saying that.

What Friedman is saying is that certain cases are making people see the Court as political. What cases?
Basically, Citizens United. Why do people think the Court is political because it valued free speech rights above a congressional effort to squelch speech 60 days before an election? Because elite lawprofs like Friedman have been telling people over and over that Citizens United was political, and you know how much people trust elite lawprof commentators... manipulating the perceptions of American people since... never.

Let's back up a minute. Citizens United came in 2010, the year that "marked the beginning of the current downward slide." Here's something else that happened in 2010: Elena Kagan joined the Court. The year before, Sonia Sotomayor joined. 2 Obama appointments in 2 years. Friedman talks about those 2 appointments, but only in the context of saying that after Kagan replaced Justice Stevens, it became true for the first time since 1953 that all the liberals are appointees of Democratic Presidents, and all the conservatives are appointees of Republican Presidents. (Stevens had been appointed by Gerald Ford and, Souter, whom Sotomayor replaced, had been appointed by George H.W. Bush. You have to go back really, really far to get to a Justice who went conservative on a Democratic President!)

Friedman concludes:

The more justices are seen as making decisions on partisan issues and the more cases are decided along the current 5-4 Republican-Democrat divide, the more the public will disapprove. 

See how that works? There are 5 conservatives and 4 liberals. The liberals, though they are the minority, need to win a whole lot more if the Court wants to recover the approval of the people. And that — if the Court were to buy it — would shift the Court to the liberal side without needing another appointment.

But here's the test of Professor Friedman's actual belief in his theory. What if President Obama gets the opportunity to replace one of the 5 conservative Justices? Would Friedman publish an op-ed pressuring the liberal Justices to vote with the conservatives in order to bolster respect for the Supreme Court? Or would he be cheering hooray for the liberal majority?

Oh, it's not that I think he (and his fellow elite lawprofs) would publish op-eds saying that out loud. I just think we'd be flooded with academic-sounding praise for all the thoughtful, well-reasoned opinions.

A New Yorker article about Supreme Court history makes a big error.

Says lawprof David Bernstein — who's written a great book that covers the era of history in question:

[Jill] Lepore writes, “In 1910, Taft appointed Hughes to the Supreme Court, where, as a champion of civil liberties, he often joined with Holmes in dissent.”...

For decades Holmes’s liberal acolytes and fans argued to the contrary, but it’s well-established at this point that he was no champion of civil liberties. Holmes did eventually become a defender of freedom of speech, but that didn’t occur until after Hughes quit the Court to run for president in 1916.

Much more detail at the link.

And here's the New Yorker article. For all the history, it's really another one of those articles — like the Jeffrey Rosen TNR essay we talked about yesterday — trying to shape public opinion around the potential Supreme Court opinion that strikes down the Affordable Care Act. Like Rosen, she says:

What people think about judicial review usually depends on what they think about the composition of the Court. When the Court is liberal, liberals think judicial review is good, and conservatives think it’s bad. This is also true the other way around....

And like Rosen, she ends with an embrace of the value that law and politics should be separate — even as, like Rosen, she nudges us to think that it's the conservatives on the Court who pose the threat:

The separation of law from politics... has proved elusive. That’s not surprising—no such separation being wholly possible—but some years have been better than others. One of the worst was 2000, when the Court determined the outcome of a disputed Presidential election. The real loser in that election, Justice John Paul Stevens said in his dissent in Bush v. Gore, “is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”...

Federally, few rulings have wreaked such havoc on the political process as the 2010 case Citizens United v. Federal Election Commission, whereby the Roberts Court struck down much of the McCain-Feingold Act, which placed restrictions on corporate and union funding of political campaigns. Stevens, in his dissent, warned that “a democracy cannot function effectively when its constituent members believe laws are being bought and sold.”

That, in the end, is the traffic to worry about. If not only legislators but judges serve at the pleasure of lobbyists, the people will have ceased to be their own rulers. Law will be commerce. And money will be king.

That's a strange way to end it, since federal judges are appointed and don't have to run for election. The independence of the federal judiciary isn't threatened by Citizens United. The independence of the federal judiciary, if anything, produced Citizens United — in which the Supreme Court, stocked with election-free judges, struck down a federal statute that was an effort by elected officials to control who gets to speak during elections.

And since we're talking about New Yorker fact-checking, I don't like: "the McCain-Feingold Act, which placed restrictions on corporate and union funding of political campaigns." Citizens United struck down a restriction on spending on one's own speech. It wasn't about contributions to political campaigns, i.e., funding.

"You're a Supreme Court Justice. I'm not. That gives you the right to judge things. That's very convenient."

Stephen Colbert interviews Justice Stevens:

Justice Stevens writes of his "extreme distaste for debates about campaign financing."

That's from his new book "Five Chiefs: A Supreme Court Memoir," and it refers to his experience immediately upon his ascent to the Supreme Court in 1976, when the Justices were deciding Buckley v. Valeo. He goes on:

That distaste never abated, and I have felt ever since that the Court would be best served by inserting itself into campaign finance debates with less frequency. 

The Court would be best served, eh? The questions have to do with what the Constitution says about  freedom of speech, so one must wonder why he'd think in terms of what serves the Court best as opposed to what the Constitution means or at least what serves the people best.

That view may have had an impact on the unusually long dissent that I wrote during my last term on the Court against the Court’s overreaching in the Citizens United case...

In addition to my overriding hostile reaction to the subjects discussed in Buckley, I also recall puzzlement about why the Court failed to endorse the position expressed by Justice White in his dissent. He effectively explained why the distinction between limitations on contributions (which the Court upheld) and the limitations on expenditures (which the Court invalidated) did not make much sense, and why the Court should have respected the congressional judgment that effective campaigns could be conducted within the limits established by the statute. Time has vindicated his prediction that without “limits on total expenditures, campaign costs will inevitably and endlessly escalate.” He thought it quite proper for Congress to limit the amount of money that a candidate or his family could spend on a campaign in order “to discourage any notion that the outcome of elections is primarily a function of money.”

That is, he favors limiting speech so that people don't get the wrong idea (the wrong idea being that money affects elections). Under the system we have, as the majority of the Supreme Court has interpreted the Constitution, candidates can spend all the money they want trying to get elected and people are free to get the "notion" that money affects the outcome of elections.

Justice Stevens continues:

The majority’s response to Justice White relied on the rhetorical flourish that “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.” The assumption underlying that colorful argument...

Colorful?

... is that limitations on the quantity of speech in public debates are just as obnoxious as limitations on the content of what a speaker has to say. 

That is to say, it's not really so bad for the government to tell a candidate: We think you've said enough.

But there is nothing even arguably unfair about evenhanded rules that limit the amount of speech that can be voiced in certain times or places or by certain means, such as sound trucks. If we view an election as a species of debate between two adversaries, equalizing the amount of time (or money) that each can spend in an attempt to persuade the decision-makers is fully consistent with the First Amendment. Otherwise, appellate court rules limiting the time that the adversaries spend in oral arguments would be invalid because they limit the speech of one adversary in order to enhance the relative voice of his or her opponent.

He's equating the formal conditions within the confines of the appellate courtroom to the speech that takes place in the entirety of all of the forums in which a candidate might speak: all of the city squares and auditoriums, all of the TV and radio channels, all of the print media, and the entirety of the internet!

There's very little mention of Citizens United in Stevens's book, perhaps because the opinion wasn't written by the Chief Justice, and the subject of the book is Chief Justices. But he does mention it, musing that, based on Roberts opinion in Snyder v. Phelps, "perhaps I should give him a passing grade in First Amendment law."

But for reasons that it took me ninety pages to explain in my dissent in the Citizens United campaign finance case, his decision to join the majority in that case prevents me from doing so.

That's it. He doesn't even attempt to explain Citizens United to the general reader, who's expected to accept that the Court got it wrong but it would take 90 pages to explain why. Citizens United — which we covered in my conlaw class yesterday — is indeed damned pesky to absorb, and there's something disturbing about a case that purports to tell us something fundamental about political speech in our democracy, but that cannot be talked about in straightforward terms. If he's so right and the other side is so wrong, he should be able to say why in a clear, readable few pages. Instead, what we get is either way overcomplicated, so you'll have to go read 90 pages, or it's insultingly oversimplified: John Roberts flunks!

Here's the 90-page dissenting opinion, in case you're up for reading it. As we say on the limitless internet: Read the whole thing. I'll bet very few people have read the whole thing. Justice Stevens delves into the history of Americans' attitudes about corporations. (In Citizens United, the majority emphasized free speech, not the source of the speech, while the dissenters made a distinction between individuals and corporations and would have accepted limits on speech when it comes from corporations.) Stevens wrote about the fear of corporations in early American history. He quotes Lawrence Friedman's "A History of American Law": “The word ‘soulless’ constantly recurs in debates over corporations… . Corporations, it was feared, could concentrate the worst urges of whole groups of men”). Later in his opinion, Stevens augments that anxiety about corporations with his own words: "corporations have no consciences, no beliefs, no feelings, no thoughts, no desires."

Here's the whole "soulless" paragraph from Professor Friedman's book:

The word “soulless” constantly recurs in debates over corporations. Everyone knew that corporations were really run by human beings. Yet, the word was not completely inappropriate. Corporations did not die, and there was no real limit to their size, or their greed. Corporations might aggregate the worst urges of whole groups of men. No considerations of family, friendship, or morality, would temper their powers. People hated and distrusted corporations, the way some people came to fear the soulless computer—machines that can join together the wit, skill, power, and malevolence of infinite numbers of minds.

Thank God my computer is soulless! I'm using it to write this post, and I wouldn't like it to insert any morality, beliefs, feelings, thoughts, and desires, between me and you, as I invite you to aggregate your possibly evil urges here in the comments. With the power of the soulless computer we can join together the wit, skill, power, and malevolence of infinite numbers of minds.

How scary is that?

"I am told that Bill [Rehnquist] sometimes used rather strong language..."

"... to voice his disapproval of unfavorable rulings by the referee in his son’s games. With regard to his colleagues, he used somewhat milder language, though it was still emphatic. He often described the harsh consequences of his strict enforcement of a rule that seemed inequitable to some of us as 'tough tacos.' Bill had a good sense of humor, but unlike some of his colleagues, he seldom displayed it at oral arguments."

Writes retired Supreme Court Justice John Paul Stevens in his new book "Five Chiefs: A Supreme Court Memoir," which I've been reading.

Retired Supreme Court Justice John Paul Stevens talks about his "most unpopular opinion" — Kelo v. New London.

The WSJ reports:

"I had people at a bridge game stop me and ask, 'How could you have written that opinion? We thought you were a good judge, but we learned otherwise,'" [Justice Stevens] said. "But you can't explain the whole law of eminent domain to your bridge opponents."

He particularly criticized the logic of Justice Sandra Day O'Connor.... The O'Connor dissent "took the position that public use is required in all cases except cases where they were remedying harm, getting rid of a nuisance or, in the case of the Hawaiians, correcting an injustice," Justice Stevens said in the interview. But in the 1954 case, "the irony of it is that the department store was in perfect condition," he said. "Their distinction was very unpersuasive."

Justice Stevens, still voting...

... says he would have joined Justice Alito's "powerful dissent" in Snyder v. Phelps.

Justice Stevens: "that was the day I decided to resign... I learned giving that talk that I had a speech problem."

"That talk" = the announcement of his dissenting opinion in Citizens United, which you can listen to here.

From an interview published today in The Atlantic.

Stevens said he retired because, while he still loved the job of judging, he had no desire to linger beyond his physical prime. He had witnessed the final years on the bench of [William O.] Douglas, Thurgood Marshall and others who should have retired earlier for health reasons. A few years ago, he secretly asked Associate Justice David Souter to tell him when it was time for him to go. But Souter left first, in 2009.

"When he retired, I knew I didn't have any safety valve anymore."

The suggestion, as I read it, is that Stevens had to judge himself strictly because he didn't have Souter to reassure him that the time to go had not yet arrived. (How can you tell if you've lost your mental powers?)

Why Souter was a unique confidante, the interviewer did not ask.

A Columbia professor is arrested for incest — but isn't there a constitutional right to incest between consenting adults?

Here's the news about the professor, David Epstein, who is accused of having a sexual relationship with his 24-year-old daughter. Now, let's read Justice Scalia's dissenting opinion in Lawrence v. Texas (the case that found a substantive due process right to engage in sodomy). Justice Scalia quotes the majority opinion (and adds italics):

“[W]e think that our laws and traditions in the past half century are of most relevance here. These references show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.”

Scalia then writes (and I'm adding the boldface):

Apart from the fact that such an “emerging awareness” does not establish a “fundamental right,” the statement is factually false. States continue to prosecute all sorts of crimes by adults “in matters pertaining to sex”: prostitution, adult incest, adultery, obscenity, and child pornography. Sodomy laws, too, have been enforced “in the past half century,” in which there have been 134 reported cases involving prosecutions for consensual, adult, homosexual sodomy..... In relying, for evidence of an “emerging recognition,” upon the American Law Institute’s 1955 recommendation not to criminalize “‘consensual sexual relations conducted in private,’ ” the Court ignores the fact that this recommendation was “a point of resistance in most of the states that considered adopting the Model Penal Code.”....

The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are “immoral and unacceptable”... the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity. Bowers held that this was a legitimate state interest. The Court today reaches the opposite conclusion. The Texas statute, it says, “furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual” ... The Court embraces instead Justice Stevens’ declaration in his Bowers dissent, that “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.” This effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review.

Of course, the Court did assert that in Lawrence, so according to Justice Scalia, under the existing precedent, consensual adult incest cannot survive rational-basis review.

Linda Greenhouse purports to be impressed by the post-retirement activities of Justices Stevens and O'Connor.

But there's also this:

Not so long ago, it was typical for justices to remain on the court until they died (the exit strategy of 49 of the 103 justices not currently serving) or became enfeebled by age (recall the explanation that Justice Thurgood Marshall gave when he retired in 1991 at the age of 83: “I’m old and falling apart.”) I can’t remember when the country was blessed by the presence of three retired justices who can get themselves from one place to another unaided.

This is a not-too-subtle hint to the older Justices to retire. Please vacate your seats and give some younger folks a shot. And give the young President an appointment. See? We will notice you as you go about giving innocuous speeches and publishes simple enough essays in the New York Review of Books — especially if you tell us you wish you voted differently on some case we journalists disapproved of or indicate you "her dismay at seeing some of her own work 'dismantled' by the current court." Come on out here where we can help you burnish your reputation.

UPDATE: I rewrote the headline, because it was so boring I was afraid no one would read through to the possibly amusing sarcasm.

Justice John Paul Stevens writes about the death penalty in the New York Review of Books.

The book under review is David Garland's "Peculiar Institution: America’s Death Penalty in an Age of Abolition." The review itself is much more of a straightforward summary of the book than the usual NYRB essay. Toward the end:

To be reasonable, legislative imposition of death eligibility must be rooted in benefits for at least one of the five classes of persons affected by capital offenses.

First, of course, are victims. By definition murder victims are no longer alive and so have no continuing interest.

That's all he says about the victims! They're already dead. As if making murder a heavily punished crime doesn't prevent some people from becoming victims. Recent research undermines the convenient old assumption that the death penalty has no deterrent effect.  Stevens says nothing about that because, I suspect, Garland doesn't.

Tom Goldstein predicts the outcomes (and the authors) of the final 4 Supreme Court cases of this Term.

To be announced tomorrow morning:

1. Bilski v. Kappos:

The only Justice who has not issued a majority opinion from [the November] sitting is Justice Stevens, which makes him the very likely author. Justice Stevens tends to take a narrow view of patent rights...

I ultimately predict that the Bilski majority opinion will be authored by Justice Stevens and that the decision will be very significant in its narrowing of the scope of method patents.

2. Free Enterprise Fund v. Public Company Accounting Oversight Board:

[N]either the Chief Justice nor Justice Kennedy has authored an opinion from [the December] sitting... [but] Chief is ... unlikely to leave himself without an opinion in a sitting.

If I’m right, that means that the PCAOB’s structure is likely to be invalidated as unconstitutional. At oral argument the Chief Justice asked no questions of counsel to the plaintiffs and was hostile to the defense of the statute....

3. McDonald v. City of Chicago:

[T]he only Justice not to write from [the February] sitting is Justice Alito....

I predict that Justice Alito will write the Court’s opinion in McDonald recognizing that the Second Amendment is incorporated [in the 14th Amendment and thus applicable to state and local government]....

4. Christian Legal Society v. Martinez:

Neither Justice Stevens nor Justice Ginsburg authored an opinion from [the April] sitting....

Though it is very difficult to tell, I think that the most likely outcome in these circumstances is that Justice Ginsburg will issue a majority opinion in favor of Hastings Law School on the relatively narrow basis that the plaintiffs stipulated that the school had a neutral “all comers” policy that did not discriminate against this group but instead provided that all groups must accept all students

We shall see. It's a big Supreme Court day tomorrow. The Court's Term ends, with the retirement of Justice Stevens, and the hearings on the Kagan nomination begin.

"Justice John Paul Stevens is the greatest Justice in Supreme Court history."

Argues Cliff Sloan, a partner at Skadden, Arps, Slate, Meagher, & Flom and a former Stevens law clerk. A key move in this argument is excluding the Chief Justices on the theory that they have extra powers so it's not a proper comparison. Then Sloan has 4 reasons:

First, his record of protecting and maintaining the rule of law during the “war on terror” stands unique in Supreme Court annals....

Second, Justice Stevens has fundamentally changed – and strengthened – the Court’s jurisprudence regarding personal freedom.... [He] has successfully re-framed the Court’s conceptual framework for personal freedom from a general “privacy” right, which is not mentioned explicitly in the Constitution, to a “liberty” right, which is prominently and explicitly protected in the Constitution....

Third, Justice Stevens has steadfastly sought to enforce the rule of law even when the Presidency hangs in the balance....

Fourth, Justice Stevens has powerfully re-shaped the law in an astonishing range of areas....

Go to the link to see the cases Sloan discusses. I would note that in some of the cases, Stevens has had something akin to the superpower that Sloan used to exclude Chief Justices from the analysis. When the Chief Justice isn't in the majority, the most senior Justice in the majority decides who will write the opinion. As such, over the last 20 years, he's authored many of the important opinions where the liberal side of the Court had the majority. That he wrote the opinion on the side that Sloan prefers isn't the evidence of a personal stamp on the law that Sloan would have us think.

Once Sloan gets to identifying and excluding the the competition for greatest Justice, the argument falls badly apart. He has to really strain to minimize Brandeis, Holmes, Brennan, Story, and the first Justice Harlan. He lost me here, but you've got to give Sloan credit for writing what would be a strong entry in a competition requiring an essay titled "Justice John Paul Stevens is the greatest Justice in Supreme Court history."

"The hope that the next justice will be a check on the power of corporations is entirely appropriate."

Writes Jeffrey Rosen:

After all, Stevens holds the seat that was previously occupied by William O. Douglas and Louis Brandeis, two of the leading anti-corporate crusaders of the twentieth century....

Anti-corporate crusaders? Sure, pick an anti-corporate crusader, Obama, and let's see how the back-and-forth in the Senate Judiciary Committee plays out. I mean, the nominee will still be confirmed, but in the rest of the political arena, leading up to the November elections? That would be brutal for the Democrats.

Yet none of the leading candidates for the Court appears to be an economic populist....

Why the absence of liberal economic populists from the shortlist?...

Since the 1960s, grassroots progressives have focused on non-economic issues: reproductive choice, for example, or civil liberties in an age of terrorism. That means that the current Supreme Court candidates had their legal sensibilities shaped in a political environment that was less preoccupied with questions of economic justice....

The Supreme Court itself stopped its own progressive forward glide when the opportunities for expanding constitutional rights arose in the context of redistribution of wealth (which is what Rosen and his ilk spin as "economic justice").

That’s a shame, because the most important issues the Roberts Court will confront over the next decade involve the constitutionality of environmental measures and economic regulations passed in the wake of the crash of 2008.... [I]t will not be enough for liberals simply to champion judicial deference for its own sake. The next justice will, like Brandeis and Douglas, need to make a substantive case for why these regulations are indispensable to protecting American democracy from the narrow interests of a corporate oligarchy....

If "environmental measures and economic regulations" are going to be passed, then why is anything more than deference to legislatures needed? Why should a Supreme Court Justice think he could bolster arguments for deference to democracy by expressing enthusiasm for the substance of the choices that legislatures have made?

The judicial role is strengthened by the appearance of neutrality and fidelity to law. Conversely, judges undercut their own power when they make it sound as though they are reaching their decisions because of their support for legislation that is challenged as a violation of constitutional rights. When arguments for constitutional rights fail, it should be (or at least appear to be) because the claimed rights don't exist, not because the rights claimants' interests are "narrow" and run counter to what the majority wants. Rights are supposed to work against the preference of the majority, so we should be wary of someone who says courts must "protect[] American democracy from... narrow interests." He is saying rights are not rights.

Although the next justice may not be an economic populist, the confirmation hearings ahead are an opportunity to cast the spotlight on the intersection between economic populism and the law. Leahy and other Senate Democrats should use the hearings to ask the nominee to discuss these questions in depth. 

Great! A bloodbath. Sounds exciting. I'll watch.

A socialist, an atheist, and a Muslim.

Ah! I've unwittingly written a "Jeopardy"-style answer. Now, you tell me the question!

ADDED: You could also take it as a Karnak answer.

WE HAVE A WINNER: Irene says: "Which affiliation do most Americans agree would disqualify a person from nomination to the US Supreme Court?"

Yes, there is a new poll about replacing Justice Stevens, and in one part of it, Americans are asked if they would be "comfortable" with various sorts of nominees. Here's the PDF of the results. A socialist, an atheist, and a Muslim are the 3 types of nominees that a majority of Americans would not be "comfortable" with. 64% were uncomfortable with the socialist (though Democrats were split 47/47%). 58% were uncomfortable with an atheist, including a majority of both Democrats and Republicans. And 53% were uncomfortable with a Muslim (though only 45% of Democrats had a problem). Interestingly, in contrast to the socialist, libertarians did pretty well. 57% were comfortable, including 53% of Democrats. The poll also asked about Mormons and Christians who take the Bible literally. Both of those types did quite will, with 65% and 62%, respectively, feeling comfortable.

"There is an idea that there is more to judging than looking at sources of law, and Barack Obama has specifically emphasized that part of the judicial role."

That's me, quoted in the L.A. Times article "Why religion could affect Obama's court nomination/With the exit of John Paul Stevens, the court will be without a Protestant for the first time. Catholics dominate. Does it matter?"

I'm slightly frazzled... but I'm doing this thing anyway.

Bloggingheads, with Emily Bazelon, talking about a Supreme Court without a Protestant, why Obama should pick an out-and-proud liberal, the causal connection between bullies and suicide, and those terrible Tea Partiers.

"The White House is now faced with a heady political calculation."

"It could invest its efforts, energy and capital in a potentially draining fight this summer over a Supreme Court nominee like Wood, who has made controversial rulings on abortion and would almost certainly face a raging firefight over her confirmation. Or it could move toward a less-controversial selection, such as Garland, in a bid to bolster its domestic agenda before this year's congressional elections. Garland has been spoken of favorably by some conservatives, and Kagan is also seen as less combustible than Wood."

Within this small pool of extremely well-qualified candidates, Obama should pick the person he thinks will do the best work for us on the Court. There will be a big fight no matter what, because there is too much to be gained from using the confirmation as a political battlefield. It's a shameful business to exclude candidates because they have had to decide abortion cases. We are impoverished if the more experienced jurists are passed over precisely because of their experience, because they have written opinions that we can read and argue about. Obama and the Democrats should have the nerve to defend the judicial decisions we call liberal.

"When President Ford was faced with a Supreme Court vacancy shortly after the nation was still recovering from the Watergate scandal, he wanted a nominee who was brilliant" and committed to the law, Obama said, hailing Stevens as a justice who "has stood as an impartial guardian of the law . . . with fidelity and restraint. . . . He will turn 90 this month, but he leaves this position at the top of his game."

On paper, it would seem that this would be Obama's last chance to appoint an assertively liberal choice to replace Stevens, who emerged as the loudest voice of the court's left wing. Democrats hold a large majority in the Senate. Next year, their grip on the chamber could be much more tenuous.

I find those 2 paragraphs, taken together, pretty amusing. Was Justice Stevens a brilliant, impartial, restrained, faithful guardian of the rule of law or the loudest voice of the left wing?

ADDED: Tobin Harshaw does a great job of collecting a lot of opinion about the various frontrunners. Excerpt:

Judicial experience may not be the only intangible working against Kagan. Another may be that she’s Jewish. “Almost nobody has noticed that when Justice Stevens retires, it is entirely possible that there will be no Protestant justices on the court for the first time ever,” writes NPR’s Nina Totenberg. “Let’s face it: This is a radioactive subject. As Jeff Shesol, author of the critically acclaimed new book Supreme Power, puts it, ‘religion is the third rail of Supreme Court politics. It’s not something that’s talked about in polite company.’ And although Shesol notes that privately a lot of people remark about the surprising fact that there are so many Catholics on the Supreme Court, this is not a subject that people openly discuss. … Only seven Jews have ever served, and two of them are there now. Depending on the Stevens replacement, there may be no Protestants left on the court at all in a majority Protestant nation where, for decades and generations, all of the justices were Protestant.”

This is why my money is on Wood.

"Stevens spoke little about his family's ordeal, but it surely helped inspire a lifelong faith in the fairness of judges and the courts."

David Savage tells the fascinating story of Justice Stevens' boyhood:

He was born in 1920, the youngest of four boys in a wealthy family. When he was 7, his father opened the 28-story Stevens Hotel on Michigan Avenue (now the Hilton Chicago), overlooking the lake.

It was said to be the largest hotel in the world, and the young boy met the traveling celebrities of the era, including aviators Charles Lindbergh, who gave young John a dove, and Amelia Earhart, who advised him he should be in bed because it was a school night. A fan of the hometown Cubs, he watched at Wrigley Field as Babe Ruth pointed his bat at the outfield bleachers and hit the next pitch there during the 1932 World Series.

But by then, his family's prospects had darkened with the Great Depression. The stock market had crashed two years after the Stevens Hotel had opened, and the ensuing business collapse emptied most of its rooms. After the hotel was driven into bankruptcy, Stevens' father, uncle and grandfather were accused of having embezzled more than $1 million from the family-run life insurance company to prop up the failing hotel.

His grandfather suffered a stroke, and his uncle committed suicide. Left to stand trial alone, Stevens' father was convicted and faced a long prison term. A year later, however, the Illinois Supreme Court unanimously overturned the conviction and said that transferring money from one family business to another did not amount to embezzlement.