Justice Stevens announces he will retire in late June or early July

[Bartholomew Roberts]

Justice Stevens is finally stepping down from the Supreme Court - meaning that in addition to McDonald being one the last decisions he will write, there will soon be a fight over his replacements.

According to the article here, the leading candidates for his replacement are Solicitor General Elena Kagan (49 years), and appellate judges Merrick Garland (57 years) and Diane Wood (59 years).

Elena Kagan made the following statement during her confirmation hearings for Solicitor General: ""The Supreme Court held in District of Columbia v. Heller, 128 S.Ct. 2783 (2008), that the Second Amendment guarantees an individual right to keep and bear arms. The Court granted this right the same status as other individual rights guaranteed by the Constitution, such as those protected in the First Amendment . . . . I understand the Solicitor General’s obligations to include deep respect for Supreme Court precedents like Heller and for the principle of stare decisis generally. There is no question, after Heller, that the Second Amendment guarantees Americans “the individual right to possess and carry weapons in case of confrontation.""

However, it is unclear whether that "individual right" she believes in is the individual right that Justice Stevens supported (a meaningless one that offers no protection) or the one supported by the Heller majority.

Any information on past decisions or statements by these prospective nominees?

 

[riverwalker76]

I read that too. I don't know that any of the possible replacements have a very good Pro-Gun Stance. Unclear or shaky at best.

 

[MTT TL]

I wish I could be doing a happy dance right now but bad news is soon to follow.

The replacement will be either Sears out of Georgia or Deval Patrick. (says me)

Oh My....

The case arose out of the Chicago-area town of Cicero's mandatory registration requirement for firearms. A local man named John Justice was raided by the Cicero police on suspicion of violating business ordinances including improper storage of chemicals; the police discovered six unregistered handguns during the raid.

Justice runs the Microcosm laminating company on 55th Ave., which sells special adhesives and does custom coatings for customers, and argued in a civil lawsuit that the local ordinance violated the Second Amendment. He did not immediately respond to a request for comment on Wednesday.

In a 3-0 opinion published last Friday, the judges said that this was a different situation from the District of Columbia v. Heller case, which led the Supreme Court to strike down D.C.'s law effectively prohibiting the ownership of handguns.

"There is a critical distinction between the D.C. ordinance struck down in Heller and the Cicero ordinance," the court said in an opinion written by Judge Diane Wood, a Clinton appointee. "Cicero has not prohibited gun possession in the town. Instead, it has merely regulated gun possession under Section 62-260 of its ordinance."

If the court had merely written that the Second Amendment doesn't apply to the states (a concept called incorporation), this would not have been especially newsworthy. After all, a different three-judge panel from the 7th Circuit already has rejected the incorporation argument.

What's unusual -- and makes this case remarkable -- is that Wood went out of her way to say that even if the Second Amendment does apply to states, mandatory gun registration would be perfectly constitutional. "The town does prohibit the registration of some weapons, but there is no suggestion in the complaint or the record that Justice's guns fall within the group that may not be registered," she wrote. "Nor does Heller purport to invalidate any and every regulation on gun use."

 

[Tom Servo]

Of course, the thing to remember is that we're replacing a liberal Justice. This situation is similar to the one we had when Souter retired.

At worst, the overall balance will be unchanged. At best, we may see the liberal side pulling back from the precipice a bit.

I am a bit intrigued by Kagan, as she was on the original short list to replace Souter.

 

[MTT TL]

Interesting:

On Monday, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit ruled in National Rifle Association of America, Inc., et al. v. Janet Reno (see FAX Alerts Vol. 5, No. 50 and Vol. 6, Nos. 3 & 27) that the FBI is not prohibited from maintaining an "Audit Log" on law-abiding gun purchasers who have cleared a National Instant Check System (NICS) check. The 2-1 ruling was sharply divided, however, with two Clinton appointees ruling in favor of Attorney General Janet Reno and the Department of Justice (DOJ), and one Reagan appointee strongly dissenting. NRA's opinion on the case is very simple -- the Brady Act, which established NICS, clearly directs that all information submitted on a firearm purchaser be destroyed immediately once the system determines that the transfer should not be denied. Also, federal law prohibits the registration of gun owners, not only under the Brady Act itself, but also under the 1986 Firearms Owners' Protection Act. Reno, however, contends that the retention of records, which she refers to as an "Audit Log," is needed to ensure proper management of NICS. She also claims that the current system (NICS) is not capable of destroying the records of law-abiding gun buyers, and it is her opinion that federal law is not explicit enough to "prohibit generally the recordation of information generated by the NICS." The majority opinion agreed with Reno and is shot through with Clintonesque ramblings over the possible meanings of words that, for most of us, are quite clear -- words such as "record" and "destroy."

The majority opinion by Judges David S. Tatel and Merrick B. Garland held that federal law "does not prohibit all forms of registration," and that maintaining the "Audit Log" is permissible because it does not include all firearm owners in the United States, and is not permanent. However, federal law does specifically prohibit "any system of registration of firearms, firearm owners, or firearm transactions or dispositions," regardless of how complete the records are or how long they are kept. The majority also held that, even though the Brady Act clearly states that the FBI must destroy all records on lawful firearm transfers that are subject to a NICS check, the law sets no specific timetable as to when the records must be destroyed. Tatel and Garland claimed the Brady Act is vague and the court must defer to "agency expertise."

 

[Doc Intrepid]

Many classified documents are (quasi-) routinely declassified 50 years after their last date of classification. Perhaps they will suggest this as a precedent?

While one might think that 'records shall be destroyed after the NCIS check determines that the transaction should not be denied' clearly means that the records should be destroyed (quickly) rather than being retained - leave it to Clinton appointees to argue that one may retain the records for an indefinite period before destroying them...so long as ultimately one does intend to destroy them...50 years, 100 years, 500 years; 'the law doesn't stipulate when they must be destroyed...'

This is precisely the sort of bozonity that makes every single judicial appointment a critical judicial appointment...

 

[RDak]

I think it is probably safe to assume that Stevens replacement will also be rabidly anti-gun IMHO.

 

[htjyang]

Dave Kopel has done a little bit of digging into the records of Judges Diane Wood and Merrick Garland (here and here). Personally, I don't completely buy into his explanations. Wood may be sloppy but she was not necessarily wrong. I think there were examples of registration during the time of the Framers in order to determine how much of the population is unarmed so that the State can prepare arms for them in time of a crisis. As for Garland, one might assign her opinion to judicial restraint. This is not to suggest that either is actually friendly to the 2nd Amendment. In fact, I don't expect them to be. But at least so far, there is no evidence that either has written an opinion as outrageous as the one that came out of the 7th Circuit openly speculating on the legality of abolishing a right to self-defense entirely.

At first, I was in favor of either Garland or Elena Kagan since both may be slightly more moderate than Wood. But I was reminded that Wood is already 59 years old. So now, I'm in favor of Judge Wood being confirmed because even if she gets on the Court, she will have less time to do damage to the constitution. In contrast, Kagan is 49 and Garland is 47.

Finally, Lyle Denniston speculated that Stevens's departure robs liberals of a powerful magnet for Justice Kennedy. I share his view on this matter, provided that his successor is not more persuasive than him.

 

[Tennessee Gentleman]

One thing is for sure, unlike confirmation hearings in the past 2A issues WILL be a big part of the process. Especially when McDonald is decided. I watched Sotomayer's hearing and the lack of what I hope is the McDonald precedent gave her a LOT of cover when asked about the 2A. The lack of a decision made it easy for her to remain VERY hypothetical and coy about it. Not anymore. Case law will be extant so no waffling there. Of course, they could always lie

 

[Doc Intrepid]

There were two points of interest (for me, among many others) in the CNN write up this morning of Steven's tenure:

First, Stevens was a military officer in WW II - he is the only Justice who not only served in the military at all, but was also a combat vet. None of the others have ever served.

Second, Stevens was regarded as a moderate when he first was appointed. The article noted that his first opinions were along the lines of "Money is not Speech", in noting how vast amounts of money could purchase not only the ability to convey a message, but also the ability to both saturate the airwaves with it and also drown out other messages. Spend huge enough sums of money and you are effectively buying elections - whether you call it "speech" or not.

What happened is not that Steven's opinions became more liberal - but that during the 35 years that he was on the bench, in many ways the country moved farther to the right. What was "moderate" in the 1950s is now 'left of center'.

I'm neither strictly Republican or Democrat - I vote on issues, but I have vast amounts of respect for combat veterans who go on to serve their countries as supreme court justices. I may not agree with all their decisions, but I can certainly respect their right to hold them - particularly when the country can shift around them so profoundly.

I wish Justice Stevens well in his retirement.

It's too bad his replacement won"t also be a combat veteran, and I also hope his replacement won't turn out to be a rabidly anti-gun judicial activist.

The final point made, though, was that what Obama needs right now is a relatively smooth, uneventful confirmation hearing - and appointing a rabidly militant anti-gun rights candidate is unlikely to bring him the easy confirmation his administration needs right before the November elections.

We can only hope...

 

[areilly]

Another interesting fact about Stevens is that he was the last justice to be confirmed without the hearings being broadcast on TV. Ever since then, they have become more and more politicized, and the hearings more theatrical. Questions about dry legal topics, objectivity, and legal knowledge don't make for good TV or rally votes for the senator asking the questions. So instead they'll focus on some hot-button high-ratings issue.

from the NYT;

Justice John Paul Stevens, who announced his resignation from the Supreme Court on Friday after 34 years, may be the last justice from a time when ability and independence, rather than perceived ideology, were viewed as the crucial qualifications for a seat on the court. He was nominated in 1975 by President Gerald R. Ford, who said all he wanted was “the finest legal mind I could find.”
Justice Stevens was confirmed 19 days after his nomination. Though Roe v. Wade had been decided two years earlier, he was asked no questions about the decision, which identified a constitutional right to abortion. His confirmation hearings were the last not to be broadcast live on television.

 

[gc70]

But at least so far, there is no evidence that either has written an opinion as outrageous as the one that came out of the 7th Circuit openly speculating on the legality of abolishing a right to self-defense entirely.

The "outrageous" decision was written by two of the 7th's most conservative judges. Speculation on abolishing self-defense was a critical concept for the Supreme Court to consider if it builds jurisprudence around the RKBA on a foundation assuming a right to self-defense

 

[Tennessee Gentleman]

but I have vast amounts of respect for combat veterans who go on to serve their countries as supreme court justices. I may not agree with all their decisions, but I can certainly respect their right to hold them - particularly when the country can shift around them so profoundly.

Well said. Justice Stevens was a great man whether we agree with his opinions or not. Classy post.

 

[Tom Servo]

One thing is for sure, unlike confirmation hearings in the past 2A issues WILL be a big part of the process.

I hope it is, but the verdict may be considered a settled issue by then. The spotlight is likely going to be on the Citizens United decision, which...well, we all remember the quip during the last State of the Union address.

 

[htjyang]

To Doc Intrepid:

The veteran in question seems to think that there was something wrong with the killing of Japanese Admiral Yamamoto during WWII:

Stevens told me he was troubled by the fact that Yamamoto, a highly intelligent officer who had lived in the United States and become friends with American officers, was shot down with so little apparent deliberation or humanitarian consideration. The experience, he said, raised questions in his mind about the fairness of the death penalty. “I was on the desk, on watch, when I got word that they had shot down Yamamoto in the Solomon Islands, and I remember thinking: This is a particular individual they went out to intercept,” he said. “There is a very different notion when you’re thinking about killing an individual, as opposed to killing a soldier in the line of fire.” Stevens said that, partly as a result of his World War II experience, he has tried on the court to narrow the category of offenders who are eligible for the death penalty and to ensure that it is imposed fairly and accurately. He has been the most outspoken critic of the death penalty on the current court.

- New York Times

I assume that, consistent with Boumediene, he wanted to arrest Yamamoto, have him tried in a civilian court complete with a generous provision of federal habeas corpus? Perhaps the admiral, through lawyers provided by the federal government, would get to argue the illegality of US entrance into WWII?

 

[Doc Intrepid]

htjyang,

You mean something like this?:

http://en.wikipedia.org/wiki/International_Military_Tribunal_for_the_Far_East

I did not take away the same inference from the text you cited as you apparently did.

"...Stevens told me he was troubled by the fact that Yamamoto...was shot down with so little apparent deliberation or humanitarian consideration. The experience, he said, raised questions in his mind about the fairness of the death penalty. “I was on the desk, on watch, when I got word that they had shot down Yamamoto in the Solomon Islands, and I remember thinking: This is a particular individual they went out to intercept,” he said. “There is a very different notion when you’re thinking about killing an individual, as opposed to killing a soldier in the line of fire.” (emphasis added)

I do not know whether you have ever been commissioned as a military officer in any of the branches of the U.S. military, however, based on the tone of your comment I will proceed on the assumption that you have not.
I have, and it colors my opinions.

As odd as it may sound, there are rules of war. There have been rules of war for centuries, especially with regard to treatment of officers by officers on the other side. (Primarily because captured officers were formerly held for ransom, however, I digress...)

One reason why there are rules for war, among many, is that fortune in war is fickle; and the officer and unit you capture today may capture you in the next campaign. If you make a habit of torturing your prisoners, they will return the favor when it's your turn. An officer has a responsibility for his men and their condition, even when they are captured. You abuse the officer or murder him and you are likely to have more difficulty with his men than might otherwise be the case. Logistics in war are often problematic, especially when it comes to prisoners.

Moreover, U.S. officers pledge on their honor to obey lawful orders and to defend the United States against all enemies, foreign and domestic. The officer prosecutes war - but he does not get to pick and choose which orders he will obey and which he will not. In particular, if an Admiral is ordered to lead a country to battle, despite any misgivings he may personally have, it is his duty to carry out his orders to the best of his ability. It would be dishonorable to do otherwise.

Officers in other countries' armies are not so very different from ours.
They have a duty to their country, the same as we do. Why does the U.S. generally follow a protocol that avoids overt assassination of other heads of state? One reason is that such a policy might lead to U.S. leaders being targeted themselves.

Stevens was a commissioned officer. According to the cited text, he was troubled that a high-ranking Japanese officer had been targeted in the particular manner that he was. Having not been there, and candidly knowing very little about it, I am not qualified to comment on the matter - however, significant numbers of intelligent and dedicated individuals can look at one set of circumstances and draw from them differing opinions as to what constitutes "justice". What is a "Just War"? The "Rules of War" have certainly "raised questions in (the) mind" of far more than one U.S. officer. Perhaps you may be a lawyer, and if so, you may recall the intellectual battles that raged over the legal legitimacy of the Nuremberg Trials?:

http://en.wikipedia.org/wiki/Nuremberg_Trials

'Justice' is almost always neat and tidy in history books, because they are generally written by the victors. In real life, and particularly in war, "justice" is often a far uglier and more elusive objective.

I will leave Stevens to his own opinions on the subject of the targeting of Admiral Yamamoto, which Stevens certainly earned by participating in that desperate conflict.

You, of course, having not been there and with the benefit of some 65 years of hindsight, are free to make of them whatever you will.

Regards,

Doc

 

[Buzzcook]

However gets the nomination, the talking heads on the right will call them a commie pinko nazi.

 

[Wildalaska]

I assume that, consistent with Boumediene, he wanted to arrest Yamamoto, have him tried in a civilian court complete with a generous provision of federal habeas corpus? Perhaps the admiral, through lawyers provided by the federal government, would get to argue the illegality of US entrance into WWII?

Your assumption says more about your own personal weltanschauung than it does about the actuality of Stevens wrestling with his own philosophy of under when and under what circumstances the State may take life

Classy post.

+1

However gets the nomination, the talking heads on the right will call them a commie pinko nazi.

Double plus 1

WilditwillbeaninterestingsummerAlaska TM

 

[Tennessee Gentleman]

Probably off topic but I too admired Yamamoto as he did his duty for his country even though he thought it stupid.

The irony of Stevens angst over Yamamoto's manner of death is that this is precisely how the good Admiral would have wanted to go. He was a legitimate target according to the rules of war like Nelson and others before him.

I suspect Stevens had lots of issues generally with war as many of those who have served in combat do also.

 

[bestwrmd]

Guys, We have to try to put Judge Andrew Napolitano into US Supreme Court. It is hard and a long battle. But, that is a great way to regain liberty.