As President Barack Obama sifts through candidates to fill Justice John Paul Stevens’ seat on the U.S. Supreme Court, the president’s commitment to bipartisanship will again be tested. His goal should not be to avoid Republican backlash, or that most extreme tactic, the filibuster, but rather to balance the high court’s conservative impetus of recent years.
A prudent political strategy would have the president float the names of some far-left leaning justices, endure the conservative reaction, then nominate a more moderate liberal judge. And his nominee must have stellar judicial qualifications; the president should not entertain any groundbreaking moves such as nominating his own counsel, as President George W. Bush did in selecting Harriet Miers, before finally choosing John Roberts for the chief justice post.
There is ample historical evidence that the Supreme Court eschews partisan ideology. Many of the justices nominated by Republican presidents, Justice Stevens included, soon went their own way, breaking with their benefactor party. On the key issues of gender equality, race and its role in economic opportunity, privacy as it relates to law enforcement, separating religion from our shared public life and property ownership rights, Stevens and other Republican nominees have not ruled on the side conservative lawmakers would have liked.
But the more recent Republican nominees have asserted a conservative perspective, issuing landmark rulings on the rights of corporations and gun ownership. Though liberal judges are often accused of being activist, it is the current conservative-leaning court that has charted a new direction. President Obama must find a nominee who can not only be sensitive to the liberal views on the issues, but one who can persuade other justices to consider that perspective.
Big issues loom in the coming years. As the nation becomes more ethnically diverse, issues of religious belief will clash more frequently with the way people interact with school, government and other public institutions. The notion that America was founded by fundamentalist Christians, and that their beliefs are enshrined in our government’s guiding documents, will be challenged. Justices will have to protect the rights of those whose faith — or lack of faith — has little in common with Christianity. At the same time, the coming demographic shift that will move those Americans of European descent into a minority also will provide challenging questions for the court; language and culture, as they are expressed in public education and social service programs, will present thorny issues.
Any issue related to faith, same-sex marriage and privacy as it relates to emerging information technologies will also be flash points.
And a collision between money and electoral politics, even more cataclysmic than that of Citizens United v. Federal Election Commission, is likely to come soon.
The new justice must not be a liberal ideologue. Instead, he or she must have the ability to see decades ahead, as the nation and its understanding of itself will change.