Memo to Justice Stevens: Don't Listen to Arlen Specter

Regardless of when Justice Stevens retires, Obama will appoint a centrist, center-to-left or liberal leaning replacement. The replacement will not be conservative or conservative-leaning -- period.
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In just a couple of days, by his own comments, Supreme Court Justice John Paul Stevens has elevated the speculation and conversation centered around whether he will soon announce his retirement from his seat on the Supreme Court.

In response to a question about when he might resign posed to him by The Washington Post, Justice Stevens replied that "I will surely do it while Obama is still President." And just in the past day, the soon to turn 90 years old Justice even said that "at some point you have to fish or cut bait."

For me, what is really fascinating about the current speculation over a possible retirement announcement from Justice Stevens are the comments made by the newly Democratic Pennsylvania Senator Arlen Specter on Fox News Sunday this past weekend. Specter said, "I think the gridlock in the Senate might well produce a filibuster, which would tie up the Senate about a Supreme Court nominee." Specter further suggested that Stevens should wait a year so that there might be a "greater chance of consensus among Senators." Frankly, nothing could be further from the truth.

First, we should of course be respectful of the wishes of any male approaching 90 years old who understands the actuarial realities of that demographic group and recognizes that, at that age, a year in time cannot be considered so casually. If he wants to retire now, he should make that decision for himself. And to be fair and honest, the only time I would feel comfortable with taking a different viewpoint would be if by waiting another year either a liberal leaning Justice or a conservative leaning Justice might create more of a chance that their replacement would be someone who likely would continue their political and philosophical viewpoint on the court.

And even then it is still up to that particular Justice to make that decision. But in this case, whether Stevens decides to retire this year or in another year, the same President will be in office and there is an equal likelihood, whatever it is, of that replacement continuing the Stevens philosophical viewpoint on the Court.

But more importantly, Senator Specter's advice is simply not supportable by any serious evaluation of the facts on the ground. Regardless of when the retirement takes place, President Obama will appoint a centrist or center to left or liberal leaning replacement. The replacement will not be a conservative or conservative leaning appointee -- period.

And yes, the Republicans may try to filibuster the nomination or, at the very least, focus all of their legislative efforts on defeating the nomination in an up and down vote on the floor.

But waiting another year will not reduce the prospects of that response in the Congress. It will in fact increase the prospects of that response as Republicans will likely feel even more emboldened a year from now than they do right now.

First, now that there is so much speculation over a potential Stevens retirement, virtually confirmed by the Justice himself, if he were to now decide to wait until next year his pending retirement will become a major campaign issue in this fall's elections, and you will have not just a few Republican candidates who will stake their campaign and win in some districts based on their public commitment to fight any liberal appointee made by the President. So they will feel even less inclined to compromise and avoid a filibuster under those circumstances next year than they do now.

Second, I believe that while the Democrats still retain control of both Houses of Congress this fall, they will lose 25 to 35 seats in the House and 5 to 7 seats in the Senate (they would have to lose 10 seats in the Senate to lose control of that chamber). If that is the case, then even though Democrats will still be in control, Republicans will have far more ability to impact the process and make things difficult to get the President's legislative agenda passed. And the Republicans would clearly feel far more comfortable in waging an all out campaign against the President's nominee to replace Stevens, and that all out campaign will absolutely include the filibuster option, particularly when many Republicans will have won their election in part based on a promise to carry through on fighting the President's "liberal" nominee.

And there are some who feel that even my assessment of the outcome of the fall elections is too generous on behalf of the Democrats, and if that turns out to be true, and the Republicans do wind up with control of the Senate (they would only need 3 to 5 more seats than I'm predicting), then they won't even have to filibuster to defeat the President's nominee at that time.

Indeed, Senator Specter, who is someone we know has been a part of deliberations on major judicial nominations in the Senate for almost twenty years, might very well be advised to get in on this next one now as his own prospects for re-election this fall look very vulnerable at the moment, even with his switch to the Democratic Party. Ironically, it is probable that Specter switched to the Democrats to avoid losing to a candidate in the primary election who may very well defeat Specter in the general election.

I see no scenario where waiting another year will make it easier to get the President's nominee through than doing it this year before the fall elections, and Senator Specter cannot make a persuasive argument for postponing it, especially if a decision now reflects the wishes of Justice Stevens.

But what fascinates me most is the politics of what's coming up for the Supreme Court in 2012. I don't believe we have seen an election in modern Presidential election history where the Supreme Court will be as important a campaign issue as it will likely be in the Presidential race of 2012.

Here's why. When President Obama took office, we all knew that he would likely have for sure two Supreme Court nominations to make during his first term, and most of us thought those nominations would be to replace Justices Ginsberg and Stevens -- the fact that the first replacement was for Justice Souter means Obama might have three. But two for sure. And we also knew that in naming two new Justices during the first term, liberals would only be able to hold their own as both nominations would be to replace existing liberal or progressive Justices -- so no real philosophical shift on the Court.

But it is my assertion that in the next Presidential term, from 2012 to 2016, we will likely have two more retirements or replacements from the Court, most likely Justices Scalia and either Thomas or Kennedy, and those retirements will be huge!

If Republicans win the White House in 2012, then they will be in the position of just being able to hold their own by making the nominations to replace Scalia, Thomas or Kennedy. But if President Obama wins re-election in 2012, the Democrats and liberals will have a chance to fundamentally and philosophically not just change but in fact seismically shift the balance on the Court to the Left for another two generations. And because of that, and particularly because the far right and conservatives (who dominate much of the media formats in the country) always are far more concerned about how Presidential elections will impact the Supreme Court than the far left and liberals are (moderates and independents have never seriously focused on the Supreme Court as a campaign issue) - the Supreme Court will be one of the top three issues of the 2012 Presidential campaign, and we just have not seen that in recent American political history.

Senator Specter's integrity notwithstanding, Justice Stevens ... don't listen to him. There may be trouble this year with your retiring before the fall elections, but whatever trouble there will be will damn sure still be there next year, and in a heavier dose as I suspect.

But the real trouble will come in 2012 and the results of the election thereof, and I look forward to both Justice Stevens and Senator Specter being around to weigh in with their thoughts.

Carl Jeffers is a Los Angeles-and Seattle based columnist, TV political analyst, radio political and social topic commentator, and a national lecturer and consultant. E-Mail:

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