The Jewish groups who liked John Paul Stevens as a Supreme Court justice are getting ready to dish out the same like to whomever replaces him.
Most of the Jewish groups closely tracking court decisions favor Stevens’ liberal record, with minor qualifications, and do not believe that President Obama will choose a replacement who deviates from the norm.
“I would say the vast majority” of potential nominees “that have appeared in the press represent the consensus views of the Jewish community as represented in polls and the positions of national Jewish agencies,” said Rabbi David Saperstein, who directs the Reform movement’s Religious Action Center.
Court watchers have named three top contenders for the post: Elena Kagan, currently the solicitor general; Diane Wood, a federal judge on the Seventh Circuit Court of Appeals, based in Chicago; and Merrick Garland, a federal appeals court judge on the District of Columbia circuit. Kagan and Garland are Jewish.
In all, there are 10 names circulating; the total impression suggests President Obama hopes to avoid a bruising confirmation battle.
Like many of the others touted, Kagan, 49, and Garland, 57, are moderates and have already accrued grudging “best we can expect” approval from conservative commentators. Janet Napolitano, the homeland security secretary, another possible nominee, successfully governed Arizona, a state that trends Republican. Judge Sidney Thomas is seen as one of the more moderate members of the liberal Ninth Circuit Appeals panel, based in San Francisco, and hails from Montana, a western, conservative-leaning state.
Wood, 58, presents a thornier challenge; she is a liberal who has challenged some of the rulings of a broadly conservative panel, and she has upheld a woman’s right to an abortion (as opposed to other potential nominees, who might be assumed to be pro-choice, but have not written controversial decisions on the issue).
Stevens, who is turning 90 this month, was a reliable liberal stalwart who earned lavish praise when he announced last week that he was leaving. Saperstein’s only caveat was that Stevens occasionally swung right on church-state separation issues, for instance on Oregon. v. Smith, which upheld a ban on an Indian tribe’s use of peyote; the Jewish community, in rare right-to-left consensus, backed the tribe.
“We think the Jewish community benefits by a strong implementation of a strong separation of church and state and the free exercise clause,” said Saperstein, who otherwise called the judge “heroic.”
Obama is meeting with Republican and Democratic Senate leaders next week at the White House to sound out strategies for assuring an easy confirmation to replace Stevens by July, so the new judge can be installed when the court reconvenes in October.
The president’s pronouncedly middle-of-the-road approach is frustrating some liberals. Ruth Marcus, a Washington Post columnist, and Glenn Greenwald, the legal scholar at the online magazine Salon, fretted about the likelihood of a Kagan nomination in particular, noting that her record is spare because she has never served as a judge. (President Bill Clinton nominated her to a D.C. appeals court post in 1999; the Republican-controlled Senate allowed the nomination to lapse.)
Kagan, who was Harvard Law School dean from 2003 to 2009, hired conservative professors, saying the faculty needed ideological diversity. As a Clinton administration domestic policy adviser, she argued for greater executive powers, now a red flag for liberals because of the Bush administration’s expansive understanding of how the executive branch may upend privacy rights in matters of national security. However, Kagan’s arguments under Clinton were confined to the executive branch’s regulatory powers, and were of a different stripe.
Still, it didn’t help that William Kristol, a neoconservative icon, endorsed her on Fox News Sunday over the weekend.
The liberal-leaning Jewish groups that track nominees are unworried. Sammie Moshenberg, who directs the Washington office of the National Council of Jewish Women, counted Kagan as an “outstanding” nominee who would have “fidelity to the rule of law and constitutional values.” Kagan has written expansively about the application of First Amendment free speech rights.
Marc Stern, the acting director of the American Jewish Congress, noted that as solicitor general, Kagan argued in favor of keeping a war memorial cross in place on federal land in the Mojave desert – a case where liberal Jewish groups have generally aligned with church-state separationists, who wanted the cross, which was first erected in 1934, removed.
“We have taken the position that this is not a basis for criticism,” he said. “Since she’s the solicitor general, she didn’t have a whole lot of choice except to defend. Therefore it would be wrong to criticize.”
Kagan or Garland would bring the court’s Jewish justices from two to three (out of nine) – and would completely remove Protestants from the bench, with Stevens gone. Additionally, Kagan or Wood would bring the number of women currently on the bench to three.
These were not concerns for Jewish groups, said representatives of several organizations interviewed by JTA.
“We’re not looking for someone who fits a profile,” Moshenberg said.