Rumors have reappeared that Supreme Court Associate Justice John Paul Stevens,
the Court’s oldest member, is about to retire. These rumors have arisen before, and
turned out to be premature, so it is not all yet clear that President Obama will have
the immediate opportunity to name a second member to the nation’s highest
judiciary body.

Given the current electoral mood in the country and in the U.S. senate (which must
confirm any nominee), potential political controversy faces the president. If indeed,
Stevens does retire now, it is not likely to change the political balance of the Court,
inasmuch as Stevens is generally regarded as its most liberal member.

In fact, even if, as is likely, Mr. Obama settles on a very liberal nominee, advocates
of liberal decisions are unlikely to have as dependable a vote as Mr. Stevens’ were.

Republicans and conservatives perhaps may choose to go all out against any
Obama choice, arguing that a younger liberal will likely remain on the Court for a
long time. Against this, facing the first real doubts that he might win a second term,
the president might choose to avoid an inevitable public squabble with his opponents,
especially before the highly important 2010 mid-term elections when, as currently
indicated, the Democratic majorities in both houses of Congress may well be reduced.

On the other hand, for that very reason this could be the last chance for those
advocating a liberal Court to seat someone who fulfill their expectations.

There is no doubt that Justice Stevens should retire, not because of his judicial views,
but because of his very advanced age. I would say the same of a conservative justice
of the same age. I do believe that men and women should be active long past the
conventional retirement age standards if they are healthy and able (my own father
practiced medicine full-time until he was 92), but in so powerful position as the
Supreme Court, I think there are common sense de facto limits if not de jure ones.
(I don’t think it can be successfully argued that the late Senator Strom Thurmond (a
Republican) or current Senator Robert Byrd (a Democrat) were/are really effective
senators in their very later years, particularly as they once were.

As has become clearer in recent years, U.S. Supreme Court decisions matter a
great deal to American public life, and the confirmation process, once usually
routine and uncontroversial, has become very contentious.

A Supreme Court vacancy, should it occur now, would throw an unusually volatile
political season into even higher pitch. But I know some conservative radio talk
show hosts and liberal bloggers who would not mind this terribly much…..