A conservative justice

Tuesday, April 6, 2010 | 2:01 a.m.

U.S. Supreme Court Justice John Paul Stevens is considering retiring, and he has made no secret about it. He turns 90 this month and is the fourth-longest serving justice in history. Still, he told The New York Times last week: “There are still pros and cons to be considered.”

Stevens said he had to “fish or cut bait, just for my own personal peace of mind and also in fairness to the process. The president and the Senate need plenty of time to fill a vacancy.”

The president and the Senate certainly would need time to consider filling a position on the Supreme Court, especially because of the potential gridlock in Congress due to the election year and the rancorous politics.

The nomination process often gets bogged down in ideological litmus tests that don’t work. Republicans have decried liberal nominees who, they say, are “judicial activists.” They say the activists make law instead of decide it. What they don’t say is that they have gladly pushed judicial activists who are conservative, as long as they agree with their views.

Look no further than this year’s 5-4 decision in Citizens United v. Federal Election Commission, which will allow corporations to spend unlimited amounts in elections. The so-called conservative majority of the justices didn’t take up the issue that was presented to the court. Instead, they decided to pursue a different issue so they could overturn the law and previous court decisions.

If Stevens does retire, we would hope that the president and the Senate would pay close attention to his judicial philosophy. Although his opinions have conferred him the title as the leader of the court’s liberal bloc, Stevens considers himself a conservative jurist.

“What really for me marks a conservative judge is one who doesn’t decide more than he has to in order to do his own job,” he said. “Our job is to decide cases and resolve controversies. It’s not to write broad rules that may answer society’s questions at large.”

Steven understands the difference between judicial philosophy and ideology. He was considered a moderate when nominated in 1975 by President Gerald Ford. Since then, Stevens has been guided by his sound judicial philosophy.

For example, in a 2008 challenge to the constitutionality of lethal injection, Stevens voted with the majority to uphold lethal injection despite his belief that the death penalty is unconstitutional. Instead of relying on his belief, he relied on the law and the court’s previous opinions. Stevens wrote that his belief does not “justify a refusal to respect precedents that remain a part of our law.”

The country could use more judges like Stevens on the bench, those who — no matter their personal beliefs — use the law, legal precedent and their intellect to decide cases.