Perhaps a "Lawyer's Lawyer" or "Judge's Judge" for the High Court

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May 20 2008 6:26 AM

Perhaps a "Lawyer's Lawyer" or "Judge's Judge" for the High Court

It's disappointing that neither presumptive presidential nominee names John Paul Stevens as the type of justice whom he'd like to nominate to the U.S. Supreme Court.

This is not to say that Stevens, a Republican appointee, belongs in every pantheon of GOP judges. Nor is it to say that Stevens, at times now called the leader of the court's liberal wing, belongs in every Democratic pantheon. It is, rather, to recall that in 1975, a U.S. president did well to select a justice based on legal acumen, with little regard for ideological bent. Stevens was the quintessential post-Watergate appointee. The Chicago native had not been active in partisan politics. His credentials were impeccable. As I've detailed here , he: was awarded the Bronze Star for having helped decipher the Japanese code during World War II; graduated top of his class from Northwestern University School of Law; clerked for Justice Wiley B. Rutledge; had a respected career as a name partner in an antitrust litigation firm; was chief counsel of an investigation that uncovered corruption in Illinois' Supreme Court; and had served on the U.S. Court of Appeals for the 7th Circuit since 1970.  Sen. Charles H. Percy, R-Ill., reminded his peers at the 1975 nomination hearings that five years earlier he'd called Stevens "a lawyer's lawyer"; now, he assured them, Stevens was "a judge's judge."

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Stevens' positions on issues played little role in his selection. Case in point: Even as Stevens' nomination was under consideration, states were petitioning to lift the death-penalty moratorium in place since Furman v. Georgia  (1972). Yet neither President Gerald R. Ford nor any senator asked him his views on capital punishment, publicly or privately. (Stevens—who within months of joining the high court would cast the essential vote in Gregg  to allow some revised death-penalty statutes—has said that at the time he did not know how he would answer the question.)

Some of Stevens' opinions have drawn the ire of Democrats on the left, others of Republicans on the right. Yet  the Republican president who appointed him wrote in 2005 :

...  I am prepared to allow history's judgment of my term in office to rest (if necessary, exclusively) on my nomination thirty years ago of Justice John Paul Stevens to the U.S. Supreme Court. I endorse his constitutional views on the secular character of the Establishment Clause and the Free Exercise Clause, on securing procedural safeguards in criminal case and on the constitution's broad grant of regulatory authority to Congress. I include as well my special admiration for his charming wit and sense of humor; as evidence in his dissent in the 1986 commerce clause case of Maine v. Taylor and United States , involving the constitutionality of a Maine statute that broadly restricted any interstate trade of Maine's minnows. In words perhaps somewhat less memorable th[an] "Shouting fire in a crowded theater," Justice Stevens wrote, "There is something fishy about this case."

He has served his nation well, at all times carrying out his judicial duties with dignity, intellect and without partisan political concerns. Justice Stevens has made me, and our fellow citizens, proud of my three decade old decision to appoint him to the Supreme Court. ...

One hopes that the person whom voters entrust with the filling of federal judicial vacancies will give priority not to "partisan political concerns," but rather to "dignity" and "intellect," ideally tempered with "charming wit and sense of humor. "

("Continuing" disclaimers, interposed here but not always to be repeated: First, as previously noted here , I had the privilege of serving as a law clerk to Justice Stevens in OT 1988 and am at work on a biography of him. Second, it' 's been my privilege to give his campaign volunteer advice on international law and human rights; however, no one has consulted me on judicial selection.)

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