For much of his 34 years on the court, U.S. Supreme Court Justice John Paul Stevens saw the law as a lifeline for the powerless. He evolved into a champion of civil liberties, often sided with victims, and was suspicious of authority — whether it was the president or the local police. Beyond his judicial philosophy, Stevens has been a hardworking jurist of immense integrity, intelligence and compassion. President Barack Obama's challenge will be to replace the retiring Stevens with someone who demonstrates similar legal instincts and personal values.
Stevens was nominated to the court by President Gerald Ford in 1975, a politically far different time. Confirmation hearings weren't knock-down drag-out partisan affairs. Ford made a qualitative choice in Stevens, looking to add a brilliant legal mind to the court, and Stevens was confirmed by a vote of 98-0. Forgive a little nostalgia for those days.
One might think Ford would be disappointed with the direction of Stevens' votes; over time the justice became the high court's leading liberal. But in 2005, Ford wrote that he was prepared to let history judge his presidency, "if necessary, exclusively" on his nomination of Stevens. Today, of course, political posturing and litmus tests have overtaken the nomination and confirmation of Supreme Court justices.
Stevens' judicial philosophy inched to the left the longer he served on the court, demonstrating that he had an open mind that could change as his experience and knowledge grew. Early on, for example, he voted in favor of the death penalty. But by 2008 Stevens had seen enough flawed death penalty cases to determine that the punishment could not be fairly applied.
Stevens' most enduring legacy may be the way he pushed back against the excess executive power asserted by President George W. Bush in dealing with terror suspects. Stevens wrote the majority opinion in two significant cases. One concluded that prisoners in Guantanamo could access the federal courts to challenge their indefinite confinement. The other set aside the military commissions established by Bush because they violated the Geneva Conventions.
Obama's nominee is unlikely to alter the ideological balance of the court. As he considers the possibilities, the president would do well to follow the instincts that led to his first nomination to the court, Justice Sonia Sotomayor. In her short tenure, Sotomayor has shown herself to be an energetic presence on the bench and a strong intellect.
Commentators are already talking about what ethnic, racial, gender or religious gaps Obama might want to fill. But whoever Obama chooses, that nominee should have a large helping of Stevens' concern for the little guy — a quality that is not sufficiently represented on today's Supreme Court.