I read with great interest a recent biography in The New Yorker about Justice John Paul Stevens.  There were some great biographical tidbits in the article, like the reason John Stevens started using his middle name in professional life (“I had a professor who said that every lawyer should have something unique about them…”) and about how he was known as the “FedEx Judge” in the 1980s because he spent so much time in Florida that he was forced to correspond with his chambers by overnight mail.

But perhaps the most important and consequential information in the article relates to Justice Stevens’ (possibly) imminent retirement.  At 89, Justice Stevens is one of the oldest and longest-serving justices in the history of the Supreme Court.  He ordinarily hires four new law clerks each year, but hired only one this year, leading many commentators to speculate that he would be retiring this year.

Jeffrey Toobin, the author of The New Yorker piece, asked Justice Stevens about this speculation, and Justice Stevens explained that he is still making up his mind, but would make the decision “within a month.”  That was on March 8.  Even more recently, Justice Stevens confirmed that a decision would be forthcoming soon, explaining that “there are still pros and cons to be considered.”

If Justice Stevens makes the decision to retire, as it seems likely he may do, the speculation about his replacement will ramp up even more intensely than it already has.  Even if he does not retire in the coming weeks, Justice Stevens told Toobin that he will definitely retire within the next three years, meaning we can all look forward to being inundated with analysis and commentary about who President Obama will nominate. That analysis is sure to include a discussion about whether the next judge should be black, white, Asian, Hispanic, male, female, Catholic, Protestant, Jewish, or [insert your own demographic identifier].

But there was another point in the New Yorker article that struck me as particularly interesting, despite the fact that it seems to get little analysis.

Justice Stevens is the only sitting Justice with military experience, having served as a Navy cryptologist during World War II.  Justice Stevens believes that his war experience has had a direct impact on his jurisprudence, most notably in the recent series of decisions about the detention of prisoners at Guantanamo Bay.  Justice Stevens played a crucial role in those decisions, having written the opinions in Rasul v. Bush (holding that detainees had the right to challenge their incarcerations in court) and Hamdan v. Rumsfeld (holding that President Bush’s military tribunals violated the Geneva Convention and the Uniform Code of Military Justice).

Knowing about Justice Stevens’ military experience lends a certain weight of authority to his opinions, and provides an interesting frame of reference for the decisions reached.  With no military experience between the remaining justices, that perspective and authority will be missed, which is why President Obama should consider appointing a justice with military experience when Justice Stevens retires.

From a purely political perspective, President Obama would be wise to do so.  Even in today’s heated political climate, military experience is lauded by both parties and is viewed positively by the public in most cases. Republicans have already indicated that they may be willing to filibuster President Obama’s next high court pick if he/she is “outside the judicial mainstream.”  Filibustering a candidate with military experience would be more difficult and more risky, as the nominee would likely enjoy support from a military establishment that traditionally supports conservative politicians.

Nominating a judge with military experience would also help President Obama’s apparent desire to improve his defense and “tough on terrorism” credentials which took a P.R. hit with his decision to try terrorists in civilian courts and his subsequent reversal of that decision.

With the U.S. fighting wars in both Iraq and Afghanistan, against unconventional guerilla enemies, defense and war issues are reaching the court with more frequency than they have in at least fifty years.  The issues are plentiful, from the status of detainees at Guantanamo Bay, to terrorism trials in civilian courts, to the rights of terrorism detainees, to whether the federal judiciary has the authority to monitor the release of Guantanamo detainees.

The Supreme Court will continue to be called on to deal with fundamental questions of civil liberty, presidential and congressional authority, and national defense in the context of war.  There is no question that the non-military justices are qualified to offer legal opinions about such matters and to appreciate military realities.  However, the perspective of a person who has actually faced those realities, and the gravity of war, is a more valuable perspective in these times than race, religion or gender can offer, and is a demographic that deserves a voice in the chambers of One First Street.

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