Bench Memos

John Paul Stevens

Justice Stevens’s announcement means that we will be challenged to endure, for the next few months, a flood of commentary, spin, and conjecture not only about the justice himself, but also about his possible successor. I would like to offer to all journalists who aim to provide responsible, illuminating coverage — and to distinguish the analysts from the hacks — the following suggestions.

No one who says “the president’s nominee to replace Justice Stevens should be judged strictly on the basis of his or her intelligence and credentials, and not on the basis of his or her views, commitments, or methodology” should be taken seriously if that person said the opposite during the nomination-and-confirmation of Chief Justice Roberts or Justice Alito.

No one who characterizes the president’s eventual nominee as “mainstream” should be taken seriously unless that person also characterized, or now regards, Roberts and Alito as also “mainstream.” 

Relatedly, no journalist should equate the editorial positions of, say, the New York Times on legal or constitutional questions with the “mainstream,” or with public opinion on such questions, or with the range of plausible answers to such questions.

No Democratic senator who voted against Roberts or Alito has any standing to object to the decision by any Republican senator to vote against the president’s eventual nominee, nor does any Democratic who praised, during the Bush administration, the filibuster as a vital protection for minority interests in a democracy has any standing to object to any Republican attempt to use the filibuster in the context of the upcoming nomination battle.

And no one who says this nomination doesn’t really matter, because the president is simply “replacing one liberal with another,” should be taken seriously. The very smart and experienced journalists who cover the Court know that Justice Stevens’s retirement gives the president a huge opportunity, one that will shape the Court’s work and direction for decades.

 – Richard W. Garnett is a professor of law and associate dean at the Notre Dame Law School.


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