Hamilton, Madison, and Jay

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Location: Mesa, Arizona, United States

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Tuesday, March 16, 2010

Justice Stevens mulling retirement?

This isn't exactly news, folks. The guy is 89, and turns 90 in April. He has always been speculated as the next justice to step down from the Supreme Court (him and Justice Ginsburg who, according to court rumors, isn't well) so it's not surprising to see a story like this from the New York Times:

Justice John Paul Stevens will soon decide whether he will stay on for another Supreme Court term, the justice told Jeffrey Toobin of The New Yorker.

“I still have my options open,” Justice Stevens said in the interview, which was conducted on March 8. He added that he would make up his mind in about a month.

Justice Stevens, the court’s longest-serving justice and the leader of its liberal wing, has hired only one law clerk for the term that starts in October. That is the number allotted to retired justices; active ones get four.

But the justice cautioned against reading too much into that hint. “When I decided to just hire one clerk,” he said, “three of my four clerks last year said they’d work for me next year if I wanted them to.”Justice Stevens, who will turn 90 next month, was willing to make one categorical statement.

“You can say I will retire within the next three years,” he said. “I’m sure of that.”

From the moment it was announced that Justice Stevens had only one clerk this term, the speculation began as to when he'd retire. It is traditional that a retiring justice takes only one clerk, and this was the one decision that fueled the rumors that he'd be announcing his retirement sometime this year.

Judging from the comments at the end of this story, it's clear the Barry supporters came out in droves, and they do their a-typical job of being clueless. Some are grieving his possible departure, some are already accusing the GOP of preparing to filibuster his replacement, and a few are weeping that none of the conservatives on the court are retiring.

As the longest-serving justice, it will be a sad day when he departs the court, but I'd be lying if I told readers that we'd be shedding tears when he leaves. No, we'll be dancing a jig because the man is hyperpartisan in his ideology; something we believe fuels many of the decisions he's written -- be it the majority opinion, a concurring opinion, or a dissenting opinion.

As for the unfounded accusations about the GOP, Republicans haven't been involved in a filibuster of a Supreme Court justice since Abe Fortas, and liberals need to be reminded it wasn't even the GOP who lead that fight. It was Democrats, openly rebelling against President Johnson's choice to elevate Justice Fortas to the Chief Justice position. It wasn't that filibuster that cost him his career on the high court. It was the corruption he was involved in, including a tax scheme, that resulted in his colleagues urging him to resign in 1969. (Liberals would be wise to learn history before spouting off about things they know nothing about.)

As for why no conservatives are retiring, why would they? Chief Justice John Roberts is 55; Justice Antonin Scalia is 74; Justice Clarence Thomas is 62; Justice Samuel Alito is 60. All four are spring chickens compared to the liberal wing of the high court, sans Justice Sotomayor. The conservative justices aren't going anywhere for awhile. If anyone caught the 60 Minutes exclusive that Lesley Stahl had with Justice Scalia, you know the man is still kicking and has no intention of stepping down anytime soon.

But is this story really news? Sort of. It's always a big deal when a justice retires, or has the intention of doing so. But the contention some are anxious for -- the fight they're spoiling for -- won't come unless Barry nominates someone so out-of-the-mainstream, hyperpartisan, or grossly unqualified that a fight is warranted. But let's face facts, folks. The GOP was virtually nowhere to be seen when Justice Ginsburg, a former ACLU chief litigator, was nominated by President Clinton. (She was confirmed 96 to 3; the three "no" votes were Jesse Helms, Don Nickles, and Robert Smith.)

I explained this to people when Barry won the election. So many of our conservative friends fretted over the possibility that he could change the face of the high court. I assured them that no such thing would take place. As stated above, Chief Justice Roberts, and Associate Justices Scalia, Thomas, and Alito aren't going anywhere. Except for Justice Sotomayor (who replaced Justice David Souter), the liberal wing of the court is closer to retirement than the conservative wing. The only worry anyone should have is if Justice Anthony Kennedy retires. He's the swing vote, and in recent cases has been swinging in the favor of the originalists (read: conservatives) on the court. He became what Justice Sandra Day O'Connor was. The difference is that he seems to have kept his faculties whereas Justice O'Connor lost her bloody mind on a host of issues.

So there should be no fretting over the possibility of a Stevens retirement. Barry can do little or no damage to the high court with an appointment to replace him. He changes nothing because his retirement means that another activist, liberal jurist will replace him. Expect the GOP to lodge their concerns and question the nominee thoroughly, but in the end whoever he names will be confirmed.

Publius II


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