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Happy Birthday, Justice Stevens

Today's post is from Frederick S. Lane, author of The Court and the Cross: The Religious Right's Crusade to Reshape the Supreme Court. Lane is an expert witness, lecturer, and author who has appeared on The Daily Show with Jon Stewart, CNN, NBC, ABC, CBS, the BBC, and MSNBC. His next book will be People in Glass Houses: American Law, Technology, and the Right to Privacy (Beacon 2009). For additional information, please visit www.FrederickLane.com.

Lane This past Sunday, April 20, was the 88th birthday of Justice John Paul Stevens, the oldest member of the United States Supreme Court. Stevens, who was appointed in 1975 by President Gerald Ford (on the recommendation, incidentally, of Ford's chief of staff, Dick Cheney), has become one of the stalwarts of the Court's liberal wing. At the time of his appointment, a number of Senators expressed concern about his health—just a few years before his nomination, Stevens had open-heart surgery. But only one justice has served at an older age than Stevens—the "Yankee from Olympus," Justice Oliver Wendell Holmes, Jr., who retired not long after turning 90.

It is disconcerting to note that every one of the Court's more liberal members is eligible for Social Security: Stevens (88), Ruth Bader Ginsburg (75), Anthony M. Kennedy (72), and David Souter (68). Only one conservative justice, Antonin Scalia (72), and the more moderate Stephen Breyer (70) are in the same club. Chief Justice Roberts (51) and Justices Clarence Thomas (60) and Samuel Alito (58) are all significantly younger.

The unusually strong correlation between age and ideology on the Supreme Court has gotten remarkably little attention, particularly in the increasingly-vapid presidential debates. It is a sad commentary that the mainstream media is increasingly comic, and our comedians are increasingly the primary source of serious news.

Scott Adams, for instance, the creator of the wildly-popular and cubically-subversive Dilbert comic strip, rarely ventures into the political realm (apart from Dogbert's world domination fetish). But Adams is still clearly paying attention, or at least occasionally reading Doonesbury, as he demonstrated in a posting a couple of weeks ago to his Dilbert Blog:

I want to know three things about a presidential candidate:

1. Who is going to advise you (including your vice president)?

2. What is your proposed budget?

3. Who would you nominate to the Supreme Court?

Those are good questions. I'd only add a couple of others: 4. What will you do to strengthen public education in this country, and 5. Which is more real to you, Santa Claus or global warming?

But having spent the last couple of years researching the Religious Right's efforts to reshape the Supreme Court, I'll focus on Adams's third question. I thought I would see how much information I could easily find about who the three leading candidates might appoint if one or more vacancies occurs during the next four years.

The place to start, obviously, is with the candidate websites (I'll look at the media and the presidential debates in a later post). Senator Hillary Clinton's site lists 14 major issues for her campaign, ranging from strengthening the middle class to creating opportunity for rural America; but there is no mention of the U.S. Supreme Court or the federal judiciary. In typically thorough fashion, Senator Barack Obama lists twenty core issues on his site, ranging from Civil Rights to Veterans, but as with Senator Clinton, makes no mention whatsoever of the Supreme Court or the federal courts. The omission is particularly startling, given the importance of the federal courts in defending many of the values and civil rights that both candidates have identified as important.

To anyone who has been paying even minimal attention to political events over the last couple of decades, it will come as no surprise that the issue of judicial appointments is near the top of the list for John McCain, the Republican's presumptive nominee. As many have noted, McCain desperately needs the enthusiastic support of the Religious Right in order to win in November, and there are few issues more important to conservative religious voters than the appointment of like-minded federal judges.

Of the thirteen issues McCain highlights on his site, three directly or indirectly suggest the types of justices he will appoint: "Human Dignity & the Sanctity of Life," "Strict Constructionist Philosophy," and "Protecting Second Amendment Rights." In his extended remarks on the subject of strict constructionism (which opens with a quote from a speech McCain gave to the ultraconservative Federalist Society, he explicitly states that he would look for nominees like John Roberts and Samuel Alito. Along with Justice Thomas, Roberts and Alito have established a strongly conservative bloc on the Court, one that has already demonstrated a willingness to disregard long-standing precedents that are inconsistent with the conservative agenda. With the addition of one or two similar jurists, there is a substantial likelihood that the Court will curtail or simply eliminate many of the constitutional protections that Americans have come to expect and enjoyed over the past forty years.

Change is an inevitable feature of the Supreme Court, but few presidential elections have taken place in the shadow of such potentially momentous change as this one. As it has for the last thirty years, the Religious Right is focusing on the issue of judicial nominees with frightening intensity during this election season, and already has successfully called the once-independent Republican nominee to heel. It is more than a little disturbing that neither Clinton nor Obama appears to consider the make-up of the Supreme Court one of the leading issues of the campaign. It is that indifference that has enabled the Religious Right to come within one or at most two votes of reshaping the Supreme Court—and the rest of America—in its image.

You might also want to read Frederick Lane on Charlton Heston and the Separation of Church and State, or Jay Wexler on the reticent Clarence Thomas.