Two Washington nonagenarians are leaving their positions of power today — one is doing so voluntarily, while the other is leaving this world altogether.
After announcing verdicts in several controversial cases, Justice John Paul Stevens will step down from the Supreme Court after nearly 35 years. And Senator Robert Byrd, the powerhouse from West Virginia who has been ill for years, passed away early this morning.
With over a half century of service, Senator Byrd was the oldest member of Congress, the longest serving member of either house, and the living embodiment of how the Democratic party changed in America in the 20th century. In the 1940s, Byrd joined and was elected to a leadership position in the Ku Klux Klan, at a time when that won you major points when running as a Democrat.
His views on race did not change overnight. He filibustered the Civil Rights Act of 1964, and was blatantly segregationist. Regardless of how precisely it happened — some say it was just politics, he credits the Baptist church — a change of heart on race for him did occur.
He was a prolific writer on the history of the Senate and arguably the institution’s biggest expert on its rules. At his death, he was widely respected by members of both parties, though his affiliation with the Klan would always haunt him, as he seemed to think it should.
As Byrd said to the Washington Post, “I know now I was wrong. Intolerance had no place in America. I apologized a thousand times . . . and I don’t mind apologizing over and over again. I can’t erase what happened.”
He lived long enough to see his once segregationist party nominate and elect the first black president. In a moving passage in his book The Audacity of Hope, then Senator Obama writes about how awkward it was the first time he had lunch with Byrd, when Byrd presented him with an autographed copy of his multi-volume senate history. (Byrd went on to support Obama over Clinton in the 2008 Democratic Presidential nomination, despite the fact that Clinton had defeated Obama in the West Virginia primary.)
Byrd served as Senate Minority Leader, Senate Majority Leader (twice), and died as the President Pro Tempore of the Senate. Many recent Democratic legislative accomplishments — most notably, the health care overhaul — would not have been possible without an often ailing Byrd being wheeled in for his vote that staved off a filibuster. (And as with his good friend Ted Kennedy, for whom he openly wept on the floor of the Senate, the loss of his seat is going to make Obama’s already tenuous legislative agenda all the more difficult to implement. It is unclear for what term West Virginia’s Democratic governor can appoint a replacement for Byrd.)
Byrd became a stalwart vote of the left on many issues, and an opposition leader for the Democratic party during the years of the Bush Administration. He firmly opposed the war in Iraq, and fought to investigate the use of torture well into the Obama Administration.
They were very different men, but there are a few parallel journeys in the lives of Byrd and John Paul Stevens. A one-time Republican lawyer, Stevens was appointed to the Federal Judiciary by Nixon and to the Supreme Court by Ford. Like Byrd, Stevens came up in a political party that would change considerably by the time he reached 90. And, though he was brought into the Federal judiciary by the left’s favorite whipping boy, he’s leaving it as the left’s judicial hero.
Stevens worked in Naval intelligence during World War II, and held a Supreme Court clerkship for Justice Wiley Rutledge after completing law school. He spent a career as a lawyer, often working with issues of monopoly and anti-trust, in both Chicago and Washington, before being appointed to the 7th Circuit Court of Appeals in 1970.
But it was as an Associate Justice of the Supreme Court where Stevens would make his mark. Stevens was appointed by President Ford, who had said he was just looking for “the finest legal mind I could find.”
His nomination was not particularly political. He was confirmed 98-0, and as Jeffrey Toobin observed in a great New Yorker profile in March, it’s probably no coincidence that occurred as Stevens marked the last time a Supreme Court Justice’s confirmation hearings were not televised.
Elena Kagan can expect a very different level of scrutiny when she faces senators later today to replace Stevens. But if some Republicans were annoyed at how Stevens drifted to the left, Gerald Ford isn’t one of them. Not long before his death, Ford wrote, “I am prepared to allow history’s judgment of my term in office to rest (if necessary, exclusively) on my nomination 30 years ago of John Paul Stevens to the U.S. Supreme Court.”
As the Senior Associate Justice, Stevens got to assign cases whenever he was in the majority in a case at odds with the Chief Justice, which happened often with both William Rehnquist and John Roberts. Like Byrd, he was also a counter weight to George Bush throughout the last decade, especially on issues like executive authority, state secrecy, the use of torture, and the death penalty.
On his final day on the bench, Stevens will be ruling on several controversial cases. The court just announced it is increasing gun rights as it struck down Chicago’s 28 year old gun ban. (Stevens dissented in the 5-4 decision about his hometown’s law, along with Sotomayor, Ginsburg, and Breyer.)
They will also announce their decision about whether a Christian college group can discriminate on the basis of sexual orientation and still receive state funding.