Justice John Paul Stevens to retire from court this summer

April 9, 2010

It’s now official that Justice John Paul Stevens will retire this summer, the AP reports. Obama gets to pick another radical Leftist racist for Supreme Court

Wood is a hard-Left judicial activist and aggressor on culture-war issues:

Wood is clearly ready to invent a constitutional right to same-sex marriage: “The right not to have the State prescribe a set of acceptable spouses, in the absence of the kind of powerful reason it would have for incest laws or laws designed to protect children, is implicit in the concept of liberty.” (Wood, “Reflections on the Judicial Oath” (8 Green Bag 2d 177, 184 (2005).)

Wood evidently believes that the inclusion of “under God” in the Pledge of Allegiance violates the Establishment Clause and that a Supreme Court ruling permitting that phrase would “announce that the United States is a nation that has adopted monotheism as its official state dogma.” (See my Part 5 post, point 3 here.)
Wood believes that it’s proper for the Supreme Court to revise the meaning of constitutional provisions to reflect contemporary international and foreign practices. (See my Part 5 post, point 2.) As Harold Koh’s transnationalism shows, that approach threatens cherished First Amendment rights of free speech and religion at the same time that it leads to the invention of new rights that entrench the agenda of international leftist elites.
No judge whom I’m aware of is more extreme than Wood on abortion. Her defiance of the Supreme Court’s mandate in NOW v. Scheidler (and her incurring successive 8-1 and 8-0 reversals by the Court) ought alone to be disqualifying. In addition, Wood has (in dissent) voted to strike down state laws banning partial-birth abortion and (again in dissent) voted to strike down an Indiana informed-consent law that was in all material respects identical to the law upheld by the Supreme Court in Planned Parenthood v. Casey.
Wood is aggressive in pursuing her ideological agenda. Her willful lawlessness on remand in NOW v. Scheidler is the starkest example. But consider also her behavior at oral argument in a case presenting the question whether a law school violated the rights of a Christian Legal Society chapter by revoking its official status as a student organization because of the chapter’s membership policies. Wood viciously maintained that the CLS chapter viewed homosexuals as “less than fully human,” conspicuously turned her back on CLS counsel as he explained CLS’s orthodox Christian beliefs, and turned back around to exclaim “Goodness!”

In his Notre Dame speech last week, President Obama encouraged “fair-minded words” and opposed “reducing those with differing views to caricature.” That’s hardly what Wood’s conduct in the CLS case demonstrates.

More broadly, President Obama says that he wants to find “common ground” on abortion and other culture-war issues, and he says that he opposes same-sex marriage. If so, he wouldn’t nominate Diane Wood to the Supreme Court.

Supreme Court candidate Diane Wood:

In the related area of military justice, the principle is well established that extraordinary tribunals, such as military commissions, are not authorized to operate if the normal courts are open for business.
via bench.nationalreview.com

On Elena Kagan, see this summary post and the linked materials.

First, the Left is hungry for a liberal lion who will use the confirmation hearing to make a compelling public case for the so-called “progressive” vision of constitutional interpretation. Its hunger is all the greater after last year’s confirmation hearing in which now-Justice Sonia Sotomayor demoralized and disgusted her supporters by trying to disguise herself as a judicial conservative.

Second, far from being a liberal lion, Kagan has (as these New York Times articles put it) “provided few clues about where she stands on the great legal issues of the day” and has established a “reputation for finding the middle on difficult legal and political issues.” (One notable exception to her cryptic record is the topic of gay rights, where Kagan has supplemented her academic record of extremist rhetoric and utterly implausible legal analysis by subverting, in her SG capacity, the Don’t Ask, Don’t Tell law and the Defense of Marriage Act.)

Third, on issues of executive power and national security, Kagan is far from the Left. For example, as the second of the hyperlinked NYT articles notes, at her confirmation hearing for Solicitor General, there was “no daylight” between Kagan and Republican senators on “the president’s broad authority to detain enemy combatants.” (See more examples in this previous post of mine.)

Fourth, in her briefing of the Citizens United campaign-finance case, Kagan abandoned the actual hard-Left rationale of the Court’s 1990 ruling on corporate-speech restrictions in Austin v. Michigan State Chamber of Commerce and thus paved the way for the conservative Court majority to overrule Austin in Citizens United.

Fifth (and much to her credit in my eyes), Kagan has displayed genuine admiration and appreciation for Justice Scalia as well as a liberality of spirit towards conservative law professors and students at Harvard.

Sixth, if she were to make the transition from SG to the Supreme Court, Kagan would face extraordinary recusal obligations during her initial two or three years on the Court, with those recusal obligations disproportionately concentrated in matters of importance to the Obama administration. Among other things, Kagan would have to disqualify herself from all cases in which she authorized an appeal from an adverse district-court ruling (and virtually all appeals from adverse district-court rulings require SG approval). She would also likely have to disqualify herself from challenges to legislation supported by the Obama administration (including, if it is enacted, Obamacare) if she offered pre-enactment advice on the legal questions at issue. In the event that the other eight justices were divided, her recusal would mean that conservative results in the courts below would stand. Perhaps more importantly, Justice Kennedy might well be much more open to the conservative approach in such cases, precisely in order to avoid an unproductive deadlock.

With 59 Democrats in the Senate, it’s a safe operating assumption that virtually anyone President Obama nominates to the Supreme Court will be confirmed. That makes it all the more striking that the Left shows no signs of willingness to fight for one of its favored candidates to be nominated.

she would be largely indistinguishable from Ruth Bader Ginsburg

via bench.nationalreview.com

And some longshots (the first two of whom would be incredibly incendiary): Harold H. Koh, Deval Patrick, and Cass Sunstein.