Stevens Filled a Supreme Court Role That Seems Unthinkable Now
(Bloomberg) -- When the Senate considered John Paul Stevens’s 1975 nomination to the U.S. Supreme Court, he didn’t get a single question about the Roe v. Wade abortion-rights decision issued less than three years earlier.
And even though Stevens was replacing a polarizing justice appointed by a president from the opposite party, his nomination sailed through the Senate, which confirmed him 98-0 only 19 days after his selection by Republican President Gerald Ford.
The breezy approval of Stevens, who died Tuesday at age 99, stands in stark contrast to the Armageddon-level fights over more recent Supreme Court vacancies, including the two seats filled by President Donald Trump. Stevens’s selection and 34-year tenure stand as symbols of a bygone era in which partisan politics could stand at a distance from the debate over the Supreme Court.
Ford’s selection of Stevens bore similarities to Democratic President Barack Obama’s nomination of Judge Merrick Garland four decades later, only with diametrically different outcomes.
Each vacancy occurred less than a year before a presidential election. Stevens succeeded Justice William O. Douglas, a Franklin Roosevelt appointee who had written the court’s 1965 decision creating a constitutional right to privacy, a ruling that laid much of the groundwork for Roe. Douglas, still the longest-serving justice in history, retired because of declining health on Nov. 12, 1975.
With the Senate under Democratic control and his own political standing weakened by his pardon of disgraced former President Richard Nixon, Ford turned to Stevens, a federal appeals court judge with Republican roots but a moderate reputation. The selection proved every bit as popular as Ford could have hoped.
“I do not recall a nomination to high office in recent years that was as widely acclaimed,” Democratic Senator Adlai Stevenson III of Illinois said in introducing Stevens at his hearing a mere 10 days later.
Garland, by contrast, never received a hearing in the Republican-controlled Senate when Obama nominated the moderate judge in 2016 to succeed the late conservative Justice Antonin Scalia. The GOP blockade kept the seat open until Trump was elected and nominated Neil Gorsuch.
Liberal Wing Leader
On the court, Stevens evolved until he became the leader of the court’s liberal wing. He abandoned his opposition to affirmative action and came to doubt whether the death penalty was constitutional. He left some of his most enduring marks with dissenting opinions in the 2008 ruling that said the Constitution protects individual gun rights and the 2000 decision that sealed that year’s presidential election for Republican George W. Bush by halting court-ordered ballot recounts in Florida.
“Although we may never know with complete certainty the identity of the winner of this year’s presidential election, the identity of the loser is perfectly clear,” he wrote in the Bush v. Gore decision. “It is the nation’s confidence in the judge as an impartial guardian of the rule of law.”
In some ways, Stevens’s slide to the left brought about today’s partisan chasm over the court. He was part of a decades-old line of Republican nominations -- including Justices William Brennan, Harry Blackmun, Sandra Day O’Connor, Anthony Kennedy and David Souter -- who to varying degrees turned out to be more liberal than many of their original champions had hoped.
Those shifts helped fuel Republican determination to avoid being fooled again and to insist on a robust conservative track record for any future nominee. The movement culminated with Trump’s pre-vetted list of prospective choices -- a roster that produced Gorsuch and Justice Brett Kavanaugh.
For his part, Ford never strayed from his pride in his choice of Stevens. In a 2005 tribute to the justice, Ford wrote: “I am prepared to allow history’s judgment of my term in office to rest (if necessary, exclusively) on my nomination 30 years ago of Justice John Paul Stevens to the U.S. Supreme Court.”
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