Justice John Paul Stevens.

Justice John Paul Stevens.

Justice John Paul Stevens’s retirement is a big loss for the country, and particularly for progressives who have valued his bold and straightforward defense of civil liberties, equal rights and equal justice over many years.
But his decampment should not lead to a bloody battle over his successor. Whomever President Obama names to the court will be no more liberal than Stevens -- and might possibly be slightly less so.
Unfortunately, I fear that this won’t stop conservatives from trying to paint any Obama nominee as extreme and dangerous. Struggles over Supreme Court nominations are a great way to mobilize one’s political base, and they help a lot of organizations to raise money. Confirmation battles help, too.
There are really two issues here. The first involves progressives, who very much want Obama to name someone who will be as aggressive as Stevens has been in standing up for their values. Obama’s political interests on this are mixed: On the one hand, Democrats seem less excited about this fall’s elections than Republicans, and a liberal pick would be a great pick-me-up for party loyalists. But with so much else that Obama is trying to get through Congress, he doesn’t want a Court fight to suck up all of Washington’s political energy.

Then will come the fight over the nominee he does pick. As it happens, Obama has some excellent options who might help him balance his political interests. I know three of the people whose names are said to be on the short list: Harvard Law School Dean Martha Minow, Judge Merrick Garland of the D.C. Circuit Court and Solicitor General Elena Kagan. All three are exceptionally bright, balanced in their approach, and warm personalities who would give excellent accounts of themselves at hearings. All are on the progressive side, yet it would be absurd to paint any of them as extreme. (Also being widely mentioned is Judge Diana Wood, who appears to meet all these criteria, as well.)
My hunch is that if there is any discernible philosophical difference among these potential nominees, Obama may pick the one who appears most liberal for this spot. He will save the apparently more moderate pick for later, when he might get a chance to replace a conservative justice. But all this will require some pretty fine parsing, since it is hard to discern clear differences in viewpoint among the members of his short list.
Let there be no mistake: The court has become increasingly conservative under Chief Justice John Roberts, and we could use a vigorous public debate over the growing dangers of conservative judicial activism. This poses another challenge, both to Obama and to whomever he picks. I would like to see these issues discussed fearlessly and openly. But having a genuine philosophical debate may not be in the interest of either the administration or the potential justice. I hope both can find a way to square prudence and principle. The conservatives have largely controlled the national dialogue on legal issues. It’s time for progressives to grab it back.