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A New Justice


President Barack Obama should nominate a Supreme Court justice who is as liberal as Chief Justice John G. Roberts Jr. and Justice Samuel Alito are conservative. It cannot be that Republican presidents can select staunch conservatives with impunity, yet Democratic presidents can choose only moderates.

No one was surprised by Justice John Paul Stevens's announcement that he would step down at the end of this term. He will be 90 years old on April 20, and his resignation has been predicted for months. Nor was there surprise when Republican senators Orrin Hatch of Utah and Mitch McConnell of Kentucky, within hours of Stevens's announcement, cautioned that Obama should not appoint an "activist."

It's hard to believe that these two senators can say as much with a straight face, in light of the performances of Roberts and Alito on the Court. Both justices have been aggressive activists in their own willingness to overrule precedents, to strike down laws, and to rule broadly. They were key votes in five-person majorities to strike down campaign finance laws and gun control ordinances, advancing the conservative ideological agenda in what, by any definition, were highly activist decisions.

At the very least, Obama should nominate someone at least as concerned about individual liberties and equality as Stevens is. Although he was left of center, Stevens was not as liberal as justices William J. Brennan or Thurgood Marshall. For instance, in recent years, Stevens ruled (over dissents by other liberal justices) that execution by lethal injunction is not cruel and unusual punishment and that a state may require photo identification as a prerequisite for voting.

What were some of the hallmarks of Stevens's constitutional jurisprudence? He is a strong advocate for the need for checks and balances, such as in his rulings that Guantanamo detainees have access to federal court via a writ of habeas corpus and that the military commissions created by President George W. Bush violated the law. Stevens believes that there should be a wall separating church and state -- a position strongly opposed by conservatives. He dissented from Rehnquist-era decisions limiting Congress's power to enact civil rights laws and provide for their enforcement against state governments.

Stevens also has been a consistent vote to enforce the Constitution's protections for criminal defendants, often in his dissenting opinions. In 2002, I argued a case before the court on behalf of Leandro Andrade, who had been sentenced to 50 years to life in prison for stealing $153 worth of videotapes from Kmart stores in San Bernardino, Calif. Andrade received the sentence under California's three strikes law, even though he had never committed a violent or serious crime. I lost in a 5-4 ruling, with Stevens writing for the dissent and explaining that no one in American history had ever received a life sentence for shoplifting until California's draconian law.

Early in his tenure on the Supreme Court, Stevens voted with the more conservative justices to strike down affirmative action programs. But over the past 20 years, he has been a consistent vote to allow race-conscious measures to advance diversity and remedy past discrimination.

What unites all of these areas is a profound belief that ultimately the Constitution is based on respect for the dignity of each person. This, of course, was true in Stevens's votes concerning sexual orientation and the law. He was in dissent in Bowers v. Hardwick, when the court held in 1986 that a state could criminally punish private, consensual, adult homosexual activity. And he, of course, was with the majority in 2003 when Lawrence v. Texas at long last overruled Bowers.

In 1996, Stevens was also with the majority in Romer v. Evans in finding unconstitutional a Colorado initiative that repealed all laws in the state protecting gays and lesbians from discrimination. I have no doubt that he would have held that gays and lesbians have a constitutional right to marriage equality.

It is imperative that Obama appoint a new justice with these same values.

There is intense speculation as to who will be chosen. My prediction is that Obama is likely to choose someone who is or has been a governor or senator. Every justice on the current court was a federal court of appeals judge prior to becoming a justice. When the court decided Brown v. Board of Education in 1954, not one of the justices had been a federal court of appeals judge.

Selecting someone like Michigan governor Jennifer Granholm or Secretary of Homeland Security and former Arizona governor Janet Napolitano would add much-needed real-world experience to the high court. Such an individual is unlikely to have the paper trail, the prior decisions, and the law review articles to be dissected during the confirmation fight. There, of course, would be campaign statements and conduct in office to examine, but it would be a very different confirmation process from recent nominee battles before Congress.

Obama needs to remember two things in picking a new justice. First, this likely will be among his longest-lasting legacies as president. Stevens was nominated by President Gerald Ford in 1975 and spent more than 34 years on the Supreme Court. If Obama's nominee serves that long, he or she will be on the court until 2045. Supreme Court nominations are worth fighting for.

Second, there are 59 Democratic senators. Filibusters of Supreme Court nominees are almost unheard of. The Democrats had 48 votes against Clarence Thomas in 1991 and 42 votes against Samuel Alito in 2006, but they did not filibuster. It is a virtual certainty that Obama can have his pick confirmed. The new justice should be someone who can be the next Earl Warren or William Brennan -- or John Paul Stevens.

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