If the rumors swirling around Washington are true, U.S. Supreme Court Justice John Paul Stevens is seriously considering retirement, and may step down during the Court's current summer recess. It is doubtful if Stevens' announcement could come at a worse time. On the eve of a looming constitutional crisis, the Supreme Court needs the stability that Stevens' continued presence would provide. If he does step down, Clinton will lack the moral authority to act in selecting a justice who may well sit on a panel that decides the fate of his presidency.
Appointed by a Republican, Justice Stevens has long been considered an independent voice on the Court, voting more often with Democratic Justices than with his Republican brethren. Despite his ideological differences with the more conservative justices, Stevens' experience and non-partisan reputation are respected by the Court's Republican majority in politically sensitive cases. The Court would be well served if Stevens remained in his non-partisan role.
Should Stevens retire, the White House will face a significant dilemma. As much as Clinton and his party desire a third Clinton nomination to the Supreme Court, the President's current legal challenges will impair his ability to forward a nominee viewed as his pick or the pick of his party. The appearance of impropriety and partiality of such a nomination would be great. With Clinton and Monica Lewinsky appearing before the grand jury, the possibility of impeachment--conceded in Clinton's own legal briefs — makes an independent selection of a nominee to the Court politically impractical and ethically impossible.
The Senate confirmation process — required for all presidential appointments — is difficult enough without such complications. Over the past year alone, two Clinton nominees encountered such significant scrutiny by the Judiciary Committee that one withdrew, and the other was given a temporary appointment by the Clinton administration to avoid sure defeat. Both of these appointments were for less significant positions than that of Supreme Court Justice. There is no question that the Senate will appropriately exercise more stringent review of a life-tenured appointee to the highest court in the land.
In the past, Clinton has not put much political capital behind his nominees, a decision that earned him the ire of his liberal base following the failure of Lani Guinier's nomination. If the President shifts his policy and pushes for a candidate amidst the current scandals, expect a confirmation battle that will make the Bork and Thomas hearings look as mild as a roll call.
Faced with these unpleasant prospects, Clinton would probably have to do one of three things. First, he could ask a nominee voluntarily to recuse himself from any legal action involving the President's current crisis. This is the least that should be done, but would probably be insufficient. Even if the nominee is successfully appointed, which is not a foregone conclusion, the press coverage of the need for recusal, and the inevitable questions asked the nominee about the crisis would focus public attention on the distinctly legal aspects of the presidential crisis, and could be quite damaging to the White House.
Second, Clinton could coordinate the selection of his nominee in an unprecedented way with the Republicans in the Senate. This is not to say that he must sacrifice his constitutional prerogative to appoint, but rather that he must agree to a Republican selection — one that will satisfy even the most conservative members of Congress. This sort of bipartisan process would eliminate the appearance that the nominee is somehow beholden to the President, and prevent the kind of bloody confirmation battle that the White House can ill afford.
Third, Clinton could choose to leave the seat vacant until after the legal challenges subside. There is no constitutional or statutory requirement that the Supreme Court have nine justices sitting to hear cases. In fact, it is not extraordinary for fewer than nine justices to hear cases at any given time (due to potential conflict of interest, for instance). In light of the circumstances, refraining from appointing a justice may be the best way to assure the perceived integrity of the Court, and prevent an ugly political battle.
It goes without saying that a coordinated nomination or continued vacancy would not sit well with members of Clinton's party anxious to see another Democratic nominee sitting on the bench. Under the circumstances, however, a Clinton nomination could do significant damage to his party in the days leading into the 1998 elections, and to the integrity of the Court. For Clinton's sake, and for the integrity and reputation of the Court, it would be best if Stevens remains on the Court until the current crisis is resolved.