Tuesday, September 28, 2004

Can Justice Stevens hang on?

Could it be that after all the debate, fear, anxiety, and high stakes manuevering, that the impact of a re-elected Bush on the Supreme Court could be negligible?

Speculation centers around the imminent retirement of three Justices, Rehnquist, O'Connor, and Stevens. President Bush could hardly do better than Chief Justice Rehnquist. It's like successfully defending a senate seat; it feels great, but you have merely held off a change for the worse. O'Connor is a dependable conservative vote, but like John McCain, another conservative, she gets branded with the "moderate" or "liberal" label for deviating on some high profile issues. Of course, I care a great deal about these high profile issues, which include religious freedom, race based affirmative action, and abortion. The chance to replace O'Connor with a true believer is exciting, but it wouldn't have nearly the impact that the retirement of Justice Stevens would. Justice Stevens is the leader of the liberal wing of the Supreme Court, and his replacement with even a mild conservative would change the court's jurisprudence in a vast number of areas.

If President Bush won re-election, would Justice Stevens hang on? Could he? Born in 1920, Justice Stevens is now 84. If he were a senator, however, he would not be the oldest member, but one of a group of octagenarians. Nor would his tenure break any records (he was confirmed by the senate in 1975).

Ernest "Fritz" Hollings is not seeking re-election. He's 82, and he's been at it since 1966. He was the junior senator from South Carolina until 2003, when the legendary Strom Thurmond, who was over 100, retired. He had been a senator since 1954.
One person who has no plans to retire is Robert Byrd, the oldest member of that august body. He's 87 years old, and a member of congress since 1959. Justice Stevens would have to hang on until 88 to have the prospect of a Democratic president. Daniel Inouye is 80 years old, serving the great state of Hawaii since 1963. Frank Lautenberg is 80 years old. He recently returned after a brief retirement, taking the seat of his arch-nemesis Bob Toricelli.

Lautenberg made a mistake when he retired before he was ready, and Stevens would as well. After a long, legendary career in the law, what satisfaction would he derive watching his successor on the court? Would that be a fun retirement, watching the court take a hard right turn, and knowing that you could have stopped it? Thurgood Marshall instructed his clerks, if he died during the Reagan administration, to prop him up in his chair and not tell anyone.

Death or serious illness could cause Justice Stevens to leave the court, but precious little else. Re-elected Bush gets two seats.

Similarly, would both O'Connor and Rehnquist retire for President Kerry? It's possible that Kerry would get only Stevens' seat were he to win election. Justice O'Connor, who is rumored to want to retire, is only 74 years old (a whipper snapper by senate standards), while the Chief Justice is 80.

After all this wonderful speculation, could it be that the next four years yield but one Supreme Court appointment?



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