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Editorial

Supreme Court needs another mind like John Paul Stevens'

President Obama should nominate a replacement who shares the justice's enduring intellectual traits.

April 10, 2010

Justice John Paul Stevens, who announced his retirement Friday, will not be remembered as the champion of a distinctive theory of the U.S. Constitution or as the author of a number of notable landmark rulings. But in almost 35 years on the Supreme Court, the former antitrust lawyer from Chicago epitomized an approach to judging that always serves the court well: dispassionate, deliberative, but also determined to adapt to changes in the life of the nation. In choosing a successor, President Obama is under no obligation to clone Stevens; but he should insist that his nominee share these qualities.

Stevens is routinely referred to as "the leader of the court's liberal wing," an appellation that sometimes seems to be part of his name. It's a fair description, but one of relatively recent vintage. For a long time Stevens was known not for influence over his colleagues but for idiosyncratic dissents. More recently he has demonstrated that he can craft majorities on closely divided issues, notably the propriety of the George W. Bush administration's tactics in the war on terrorism.

He also became a trenchant critic of a lack of judicial restraint by the court's conservatives, accusing them just this year of creating "a dramatic break from our past" by ending restrictions on corporate spending on election campaigns. But over his long career, Stevens sometimes has voted on the conservative side. In the landmark 1978 Bakke case, he wrote that a white applicant's civil rights were violated by a University of California medical school's affirmative-action policy. In 1989, he dissented from a ruling providing 1st Amendment protection for burning the American flag as a political protest -- a position he still defends.

Whether Stevens moved left or the court on which he sat moved right, it's undeniable (and unsurprising) that a careful but intellectually curious justice would evolve over three and a half decades. That suggests to us that in choosing Stevens' replacement, Obama should focus on enduring intellectual traits rather than on whether a nominee possesses views that would augur well for the administration's priorities.

Some Obama supporters also hope that, specific issues aside, the president will choose a justice who will defend an expansive view of constitutional rights with the same combativeness displayed by Justice Antonin Scalia and other conservatives in pressing for constitutional "originalism." Even if the president finds such advice persuasive, he should insist that his nominee also possess the independence of mind that allowed Stevens to survive and grow over a long and remarkable career.

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