Outside editorial: Find centrist judge, avoid partisan fight

Posted: Wednesday, April 21, 2010

The following editorial appeared in the Miami Herald on April 18:

President Obama hasn't named a replacement for retiring Supreme Court Justice John Paul Stevens yet, but the stage is already being set for a replay of last year's needlessly contentious confirmation battle over Sonia Sotomayor.

Objection! This isn't necessary.

Judge Sotomayor, a well-qualified federal appeals court judge, eventually won Senate approval, but not before she was put through the proverbial wringer for the sake of politics. Opponents and right-wing activist groups found spurious reasons to vilify her character and disparage her judicial record, to no avail.

The only tangible result of the nastiness was to raise questions about whether confirmation hearings do more harm than good. Yet here we are one year later and once again - even though there is no actual nominee - filibuster threats are in the air and the usual catchphrases about "activist judges" and candidates "outside the mainstream" are bandied about.

Stop. Now. This is not a plea for undue deference to a president's choices. On the contrary, senators have an institutional prerogative to ask questions and a duty to ascertain whether a candidate is suitable for the nation's highest court.

If there are serious doubts about qualifications, they should be explored. If there are ethical issues in the candidate's background, ask about them. If there are questions about judicial philosophy, by all means probe.

But over the years Supreme Court confirmation hearings have become little more than a pretext for the more-partisan members of the Senate to engage in extended rhetorical brawls that transform the nominee into a political punching bag.

Both parties are to blame. Chief Justice John Roberts and Justice Samuel Alito were both subjected to needlessly partisan attacks by Democrats. Then-Sen. Barack Obama voted in favor of the failed attempt to filibuster Judge Alito. Indeed, he voted against confirming either one of President Bush's nominees.

Now the shoe is on the other foot. Obama no doubt believes that a president's prerogatives should be respected, barring a truly awful choice. He can help his own case - as he did with Judge Sotomayor - by avoiding the selection of an ideological firebrand.

Republicans, for their part, have an obligation to hold their fire unless there are well-founded reasons to object. If Mr. Obama makes a centrist choice, the nominee deserves to be treated as such.

Justice Stevens will be hard to replace. The long-serving justice disdained the ideological audacity of some of his colleagues. He was firmly anchored in precedent and fought anyone with activist ambitions. Thus, he voted to uphold the constitutionality of the death penalty because he believed precedent required him to - even though he said it had come to represent a "pointless and needless extinction of life."

Clearly, Justice Stevens knew the difference between what the law is and what he thought it should be. President Obama would do well to find someone who can do as much.

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