Justice Stevens Expected to Announce Retirement Plans Soon     Permalink

Supreme Court Justice John Paul Stevens, the oldest and longest-serving member of the Supreme Court, will turn 90 on April 20th. Not surprisingly, at that age, the subject of retirement tends to come up from time to time. On March 8th of this year, Stevens said he would announce his future plans within a month. Combined with the fact that he hired only one law clerk this year instead of his usual four, many court observers expect him to announce his retirement effective this June. Since, despite his appointment to the court by a Republican President, Gerald Ford, he has become the court's most liberal member, his retirement would set off an ideological battle that will reverberate all the way through the midterm elections.

Midterm elections tend to be about turning out your own base rather than winning over independents, and both partisan Democrats and partisan Republicans are looking forward to a wonderful battle over confirming his successor. In the event of a vacancy, President Obama would have to decide how much of a fight he wants. However, no matter who he appoints, the Republicans will scream that the nominee is a far-left activist judge (unless he or she is an academic, in which case they will scream he or she is a far-left academic). Unfortunately, a rational discussion of the candidate's merits and qualifications isn't possible in the current climate of charges and countercharges. Given that most Republicans in the Senate will filibuster anyone he picks, independent of the person, Obama might just decide to pick a young liberal to fire up his own base, many of whom are disappointed with him for not pushing for a public option in the health-insurance wars. The selection of a young, liberal, woman might get them excited and willing to go vote in November.

Reading the tea leaves on who he might pick is very difficult since it is Obama's decision and his alone. Of course, before picking Sonia Sotomayor to fill David Souter's seat, the Justice Department compiled thick dossiers on multiple potential candidates, so not much research or vetting would be required now. Still, what Obama has to weigh is how much of a fight he wants and how much that fight will distract everyone from his policy goals of reining in the banks and possibly dealing with immigration. He really, really does not want the next six months to be all about abortion.

However, Obama is well known for wanting to change the long-time direction of America rather than winning the 24-hour news cycle. He is keenly aware that Supreme Court appointments are a major tool for doing this and he surely knows the Democrats will probably have only 51-55 votes in the new Senate, as opposed to 59 now, so this may be his only opportunity to name a real progressive. The next vacancy after Stevens is likely to be Ruth Ginsburg (77), another liberal, who has had colon cancer and pancreatic cancer.

So Obama has to weigh (1) his plans to change America (2) his policy agenda (3) the nastiness of the confirmation battle and (4) the midterm elections in making a pick. In terms of the confirmation battle, while conservative Democrats will pro-forma grumble about anybody he picks, none of them wants to be the deciding vote that defeats his nominee, especially if the nominee has a gold-plated Ivy League pedigree and years of relevant experience. But he needs at least one Republican to break the filibuster. No doubt he will concentrate on six senators to corral that last vote. Four of the 17 women in the Senate are Republicans: Kay Bailey Hutchinson (R-TX), Susan Collins (R-ME), Lisa Murkowski (R-AK), and Olympia Snowe (R-ME). By nominating a clearly qualified woman, he puts all of them under pressure to support her, lest the senator anger her female constituents. Snowe is up for reelection in 2012 and is the most likely to support a woman; Murkowski is the least likely.

Two men are also going to be targets. Scott Brown is also up in 2012 and voting against someone who graduated from Harvard Law School or is or was a professor there is going to be hard to explain to the voters. Running against Harvard is easy if you are a senator from Texas but not so easy if you are a senator from Massachusetts. The other male senator who is potential vote is Lindsey Graham (R-SC). He served in the Judge Advocate General's Corps in the Air Force and is known to be a strong supporter of the rule of law. He believes that senators should not vote against clearly qualified nominees just because they don't like his or her presumed politics. He voted to confirm Sotomayor to the court.

That said by way of introduction, here are the names most talked about as Stevens replacement, sorted on age, always a factor in Supreme Court nominees. The younger your choice, the longer your influence.

Elena Kagan has a lot going for her. Nominating a young, liberal, woman, will excite Obama's base and put Olympia Snowe on the spot. Voting against a woman from New England is not going to endear her to Maine's voters in 2012. Also a problem for Scott Brown. Because Kagan has never been a judge, she doesn't have a paper trail of decisions her opponents can data mine for choice nuggets. However, as an academic, she has written extensively, but the writings of academic lawyers are so abstruse and involuted that it may be hard to find a quote that fits on a bumper sticker, like Sotomayor's "wise Latina" remark. Obama obviously thinks a lot of Kagan since he appointed her Solicitor General, the person who argues for him before the Supreme Court. To the extent one can speak of a favorite at this point, she is it.

Harold Koh might be a relatively easy nominee to get through the Senate based on his biography and lack of a long record for opponents to dig through. His parents were born in North Korea but escaped to the South. Then after the country became a dictatorship, they (and young Harold) escaped to the U.S. Koh had polio when he was 6 but after multiple operations and treatments, he managed to overcome the disease and graduated from Harvard and Harvard Law School. This is the kind of "American Dream" biography Republican senators will have a lot of trouble attacking. After graduating, he became a professor at Yale, Dean of the Yale Law School, and later had various government jobs, including a stint in the Reagan administration. He is now Hillary Clinton's senior legal advisor in the State Dept. When looking at a problem, he often asks how other countries have dealt with it. In any other country, this would be considered a wise thing to do, but in the U.S. it is controversial.

Cass Sunstein, a professor at Harvard now on leave working as administrator of the Office of Information and Regulatory Affairs, would engender a huge battle in the Senate. He has written a number of books and said some very controversial things. For example, a whole chapter in one of his books he argues for abolishing government recognition of marriage altogether and just have civil unions, for straights and gays alike. Having him on the court would no doubt lead to some high-powered discussions when discussing cases. Sunstein married Obama's former aide, Samantha Power, in 2008, which would become fodder for the right ("if you don't believe in marriage, why did you just get married?"). Still, if Obama wants an intellectual heavyweight as a counter to Justice Scalia, Sunstein fits the bill.

If Obama decides he doesn't want a fight in the Senate and wants to concentrate on banking reform and other matters, his best best is to nominate Judge Merrick Garland, a moderate on the D.C. Court of Appeals. All the Democrats and most of the Republicans would support him, knowing full well they can't hold the seat open until Jan. 20, 2013, and Merrick is about as conservative a nominee they are likely to get from Obama. Like so many other potential nominees, his pedigree is Harvard University and Harvard Law School and his grandfather served on the New York State Supreme Court. The problem with Garland is that it will disappoint Obama's base again and he needs them to come out and vote in November.

Diane Wood is the oldest of this group and is known as a strong liberal from the University of Texas at Austin. She was a professor at the University of Chicago Law School and Associate Dean before being named to the Seventh Circuit by President Clinton. She has a long paper trail and is a strong supporter of abortion rights, which would mean a long, drawn-out battle in the Senate with the potential of losing a couple of conservative Democrats. She's probably a riskier choice than Kagan and is a decade older to boot.

As an aside, Presidents often float (i.e., leak) the names of potential nominees to win favor with various groups. By "suggesting" that a certain person is under consideration, the group thinks that their views or ethnicity or sexual orientation is something the President looks on with favor. There is almost no downside in such leaks because they are never confirmed or denied and when the choice is someone else, the targeted group can always say "we were at least close" even though in reality they had a snowball's chance in Hell. In this vein, the name of Pamela Karlan, a professor law at Stanford, is occasionally mentioned, primarily because she is openly lesbian. By having her talked about, he gains some credibility with supporters of gay rights. In the end, he won't choose her to avoid a firestorm and a huge fight in the Senate. Another possibility is choosing a politician rather than a judge or law professor. Two women whose names have been floated are Sen. Amy Klobuchar (D-MN) and Gov. Jennifer Granholm (D-MI), but Obama is probably too conservative to look far outside the judicial and academic pools. Besides, the governor of Minnesota, Tim Pawlenty (R), is a Republican who would like to be President, so he would replace Klobuchar with a conservative Republican and Granholm is not very popular in Michigan. So if Obama wants a woman, Kagan and Wood seem like better bets.

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