When I first heard of John Paul Stevens’s decision to retire from the Supreme Court, I felt a tinge of sadness that America was losing so idiosyncratic a juror.
Never again will the monolithic sea of black robes in court portraits be brightened by a colorful bow tie (barring a surprise decision by President Obama to name conservative pundit Tucker Carlson as Stevens’s replacement). Alas, the bow tie shall be missed.
Once I’d spent a respectful amount of time mourning this loss, I began wondering whom Obama will tap to fill the vacancy. Conventional wisdom says that he will choose from three candidates: Merrick B. Garland of the U.S. Court of Appeals for the District of Columbia, Diane P. Wood of the U.S. Court of Appeals for the Seventh Circuit and Elena Kagan, former dean of Harvard Law School and current U.S. Solicitor General. All three are fine choices—Kagan in particular impresses me—but I harbor hope that Obama might pick someone really surprising, like Richard Posner, the conservative heavyweight who sits on the same bench as Wood, or David Friedman, whose work on the intersection of economics, society and law has been fascinating. Either would certainly make for an interesting confirmation process, to say the least.
Assuming Obama chooses someone qualified, Senate Republicans will have to decide whether to gracefully defer to the executive’s authority or use ideological objections to stall the president’s agenda.
Recent history doesn’t give me much hope that civility will trump politics. When Obama nominated Sonia Sotomayor to the court last summer, Republicans rushed to call the woman nominated to be the first Hispanic justice a racist. While some, like Senator Lyndsey Graham, behaved admirably, the vast majority of the minority party acted like children. It’s hard to imagine the GOP suddenly embracing an Obama nominee with the midterms looming and the bitter fight over health care a not-so-distant memory.
But Republicans should think twice about a knee-jerk reaction to Obama’s nominee. They should of course take their role of advice and consent seriously; should Obama nominate someone egregiously under-qualified or shockingly out of the mainstream, respectful opposition would be the appropriate course of action for Democrats as well as Republicans.
If, however, Obama’s choice is reasonable, Republicans will have a chance to prove themselves more than just a “party of no.” Both parties have behaved abysmally in recent Supreme Court battles, forcing confirmation hearings into a spiral of posturing and obstructionism. The first party to break with that tradition will have proven itself a relief from the partisan gridlock that’s befallen Washington. Supporting Obama’s choice wouldn’t just be the right thing to do—it’d be good politics, too.
Obama won the presidency with huge electoral and popular majorities. As Graham said during the Sotomayor hearings, “elections matter.” Republicans will almost certainly not be ecstatic about whomever Obama chooses, but they should approach his nomination with the respect and open-mindedness befitting a minority party.
Nathaniel French is a junior theater major. He can be reached for comment at [email protected].
