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Brooks, Marcus on Legacy of John Paul Stevens

April 9, 2010 at 12:00 AM EDT
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Columnists David Brooks and Ruth Marcus sort through the top political stories of the week, including the retirement of Supreme Court Justice John Paul Stevens and the announcement by Rep. Bart Stupak of Michigan that he will not seek re-election.

JIM LEHRER: New York Times columnist David Brooks, Washington Post columnist Ruth Marcus, filling in for Mark Shields.

David, do you think — do you detect a return of the moderates on health care, on the health care bill?

DAVID BROOKS: I haven’t heard from them recently.

DAVID BROOKS: No, I think it’s a tough vote. For people in districts like that, it is a tough vote.

The Gallup Organization has been asking people their view of the Democratic Party for the past 18 years. And the Democratic — and the Republican Party — and the Democratic Party is now at a historic low. It’s never been as poorly thought of in the American people as it is right now. And that’s partly health care. It’s partly a lot of things.

But — but, if you look at the recent polls, after health care passed, there was a little boost in its popularity. But now it’s again quite unpopular. So, whatever the merits of the bill, it’s not going to be a political winner this year.

JIM LEHRER: Do you agree, not a political winner?

RUTH MARCUS: Not a political — it’s not going to be a political winner this year, for sure.

And I think that the best case that the congressman could make is revival of the moderates, but I wouldn’t go to the bank on that one. Look, for the president and for his party, it really hinges on the economy. And the moderates are not going to feel revived.

And the extremes, particularly the extremes on the right, who are very worked up, are not going to feel calmed down, until the economy starts to revive.


RUTH MARCUS: And the truth is that the effect of health care is so far off, health care reform, is so far off, that it’s not going to be motivating people who are looking for the benefits for this year. It is going to be motivating the opponents.

JIM LEHRER: What about the announcement today by Bart Stupak, the moderate Democrat from Michigan…


JIM LEHRER: … who said he is not going to run again? Of course, he was very much involved in the abortion issue during the debate. Should he be seen as a victim of the health care reform debate?

DAVID BROOKS: I think so, and the evacuation of the moderates. He is a member of Congress, of whom there used to be many, who is economically pretty liberal, socially quite conservative. And that used to be a type.

And you would have types like that. And he sort of stood for them. But there weren’t many during this debate. And so he has been hit viciously from both sides, from the left, from people who are upset because he almost dethroned or got in the way of health care, from the right, people who think he stood for pro-life and then became the Benedict Arnold of the pro-life cause by signing on.

So, he has been hit both ways. And I think it was extremely unlikely he was going to win again. He has been there awhile, has done a lot of things.

JIM LEHRER: Eighteen years, yes.

DAVID BROOKS: And so he is someone who is sort of stuck in the middle there, and there is little room for that.

JIM LEHRER: Do you see that, Ruth, that…

RUTH MARCUS: Exactly. And it was absolutely remarkable that, within a few minutes of his announcement, you had e-mails from both — in my inbox anyway — from both the National Organization for Women and other folks cheering that he was leaving because he was such an opponent of theirs on abortion rights, and the Tea Party was delighted as well.

So, if there is any sort of particularly terrific metaphor for the absence of space, as David said, in the middle these days, and for the extremes, it is the fact that Bart Stupak, who was in the middle in a sort of odd way, very — not just on abortion, on gun rights, and things like that, socially conservative, economically liberal/moderate — didn’t have a place to be in the current political environment.


OK, let’s go on to the other retirement of the day, the big one, the retirement of John Paul Stevens at the Supreme Court, the announcement he is going to leave after the summer. But what are your thoughts about his departure?

DAVID BROOKS: Yes. Well, I’m going to stay, thematically, where we have been.


DAVID BROOKS: To me, when you look at the history, it’s important to look — you can sort of see recent American political history in his — the course of his career.

First, the most exciting thing to me was, he was at Wrigley Field when Babe Ruth called his shot and hit the home run.

JIM LEHRER: Oh, my God. Oh, David.

DAVID BROOKS: So, I had to get that in.

DAVID BROOKS: He also enlisted in the U.S. Navy on December 6, 1941, which is fascinating to me.


DAVID BROOKS: But, in the early part of his career, sort of a Republican family, considered himself a moderate Republican, but worked for a New Deal liberal on the Supreme Court as an intern, and then worked on progressive causes in Chicago to reform the city there.

And so he had done some things on both left and right. And when Gerald Ford was looking for a nominee, Chuck Percy, who was then the senator from Illinois, a moderate Republican, says, what about this guy? He’s very smart.

And, in those days, a president could think non-ideologically. I will just pick the smartest guy. This guy seems very smart. Chuck Percy likes him.

And, so, that was like a different era. We don’t do that anymore.

JIM LEHRER: Right. Right.

DAVID BROOKS: Now we run through a million litmus tests on each side. And the idea of a Republican picking somebody with that background would never happen — vice versa.

And then, so, he — he’s part of that era. And then we enter a new era, an era where the country and the court have moved to the right, but where ideology has become much more sharply divided. And, so, the sort of process his successor will go through is 180 degrees from the process he went through.

JIM LEHRER: Do you agree; it is going to be a different world for the new person, as opposed to what John Paul Stevens went through, if nothing else?

RUTH MARCUS: It’s going to be a different world. And Justice Stevens has pointed out that, with the exception of Justice Ginsburg, every — every retiring justice, including him, has replaced some — has been replaced by somebody more conservative than the retiring justice was.

So, this court is shifting. I went back today and looked at The New York Times and Washington Post stories on the day that Justice Stevens was selected.

JIM LEHRER: What did they say?

RUTH MARCUS: And it was fascinating.

“President Ford picks centrist for court.”

JIM LEHRER: Centrist?

RUTH MARCUS: A centrist. And then…

JIM LEHRER: That is an old-fashioned word, isn’t it?

RUTH MARCUS: And which tells you that — which was a fairly accurate assessment of him at the time. And he will tell you, he hasn’t moved; the court has moved around him.

I think one of the interesting legacies of Justice Stevens’ retirement is the odd fact that President Obama — and, look, all of these predictions are fraught with peril.


RUTH MARCUS: But President Obama is apt to leave, at the end of his first term, to have a Supreme Court that is more conservative than the one that he inherited, because, if you look at Justice Souter and Justice Sotomayor, pretty much a wash is the best guess.

And it’s unlikely that somebody who is as liberal as Justice Stevens is now perceived will be…

JIM LEHRER: Will be confirmed?

RUTH MARCUS: … will be nominated and confirmed by the president.

JIM LEHRER: Do you agree with that, that — that President Obama could not get away with nominating somebody as liberal as John Paul Stevens is tonight?

DAVID BROOKS: Well, they have got an interesting choice.

I mean, on the one hand, Stevens is pretty liberal, by our terms these days. And I think he has also moved to the left a little, as we heard earlier. But, so, on the one hand, the activist groups in the Democratic Party want somebody just as liberal, at least, as Stevens.

And, on the other hand, it is an election year. And Obama is already in trouble in the middle. Does he and all the moderates who are going to be running in states like Indiana and Ohio, do they really want a big ideological fight?

So, he’s got these two forces, one that says, no, you — let’s pick a fight, get a liberal, another saying, no, get a moderate, somebody you can get confirmed.

I think, if I were sitting there in the Obama White House, from a Democratic perspective, I would say: Hey, we’re going to lose six to eight senators. We’re never going to get another shot to nominate a liberal. Let’s take our chances with this one.


RUTH MARCUS: The interest groups that are pushing for a liberal nominee have — are not particularly happy with the judicial nominees they have seen from the president thus far. And if you…

JIM LEHRER: You mean the — in the other courts?

RUTH MARCUS: In the lower federal courts.

JIM LEHRER: But they liked Sotomayor?

RUTH MARCUS: They like Sotomayor.


RUTH MARCUS: But they’re nervous about where she is going to end up. I do think that…

JIM LEHRER: Because she was a former prosecutor?

RUTH MARCUS: Because she was a former prosecutor, and her testimony, if you had taken out her name and put in justice — Chief Justice Roberts’ name, you wouldn’t have been able to tell the difference between them.

And, obviously, there will be — there is and there will be a difference between them in terms of voting record, but they want somebody a little bit more — one of the things I think we’re going to see from the White House — and you heard this a little bit in the president’s statement today — is to try to recast the liberal-vs.-conservative debate, to not make it about social liberalism, as much as about economic power and trying to even up the playing field between the powerless individual and the powerful corporations and other powerful interests.

And I think that may be a way for them to try to elide that — that tension that they face.

JIM LEHRER: David, somebody might say to Ruth, good luck on that, right?


DAVID BROOKS: Well, I think we have had — been having that argument for the year.


DAVID BROOKS: And as I said in the poll statistics earlier, it hasn’t gone so well for Democrats so far.


But the word firestorm was used in the earlier discussion that — about — at the very beginning, where — that Judy ran, where the one thing that President Obama is going to want to avoid is a firestorm over this nominee. And he can’t do a liberal without having a firestorm.

DAVID BROOKS: Right, but he could do a liberal minimalist, as they say.

One of the people who works for him and who is actually short-listed on the — to be a nominee is a guy named Cass Sunstein. And he — he has written about President Obama before, saying he is a liberal, but he’s a minimalist, meaning he doesn’t believe in judicially activist, getting somebody who is going to try to rewrite the American society through the court.

And, so, he could choose someone who has sort of a liberal pedigree, but not an aggressive personality. I happen to think all of these decisions for — politically anyway, are done on the basis of personality, not their judicial views.

JIM LEHRER: Ruth, what about the suggestion that has come from other folks that maybe it’s time to put some — a real person on the Supreme Court, in other words, not somebody who is a former appeals court judge, has a long history on the bench, but a lawyer, obviously, but somebody, even a political…

RUTH MARCUS: … have to be a lawyer, but…

JIM LEHRER: A politician. It has to be a lawyer, but a politician.

RUTH MARCUS: I — the president is extremely attracted to that idea.

Here is the problem with the real person.


RUTH MARCUS: First of all, the kind of real person that we would be talking about would be a politician person. They have this unfortunate tendency to have enormous paper trails, both voting records and statements, so that — which could be mined, which would be — make — be so much more fun, actually, than reading law review articles, which is what people like me are always stuck doing with these appeals court nominees.

The other problem is that you have to worry about, if it’s a politician, what is the consequence? If you find a senator who looks like she would be young enough, smart enough, interesting enough, whatever — Amy Klobuchar, a senator from Minnesota, is somebody who has been mentioned.

Well, guess what? There’s a Republican governor in Minnesota. So, you have to deal with those things also. So, as attractive as it is, it’s been very hard to find in practice.


DAVID BROOKS: That would be excellent, excellent.

JIM LEHRER: He’s not a lawyer. I don’t think he’s a lawyer.

DAVID BROOKS: Yes, I don’t think he’s a lawyer, yes. He has a paper trail.

JIM LEHRER: He does have a paper trail.

RUTH MARCUS: He has a video trail.



Thank you all very much.

Ruth, good to see you.

RUTH MARCUS: Thanks. Thanks for having me.

JIM LEHRER: You too, David.

DAVID BROOKS: Thank you.