Obama's Task in Replacing Stevens

By Kenneth Jost
      Justice John Paul Stevens’ decision to retire from the Supreme Court gives President Obama a problem more than an opportunity in choosing a successor. As the leader of the court’s liberal bloc, Stevens will be not simply hard but impossible to replace, at least in the short term.
      Stevens conveyed his decision to end his 34-year tenure in a one-paragraph letter to President Obama delivered on Friday [April 9]. Stevens said that he would retire one day after the court starts its summer recess at the end of June in order to ensure that his successor can be appointed and confirmed “well in advance of the commencement of the Court’s next term,” which begins in October.
      In making his second Supreme Court appointment, Obama will be working with a list of contenders who finished as also-rans last year to Justice Sonia Sotomayor. The three candidates being widely described as front-runners now include two whom Obama personally interviewed last year — Solicitor General Elena Kagan and federal appeals court judge Diane Wood — and Judge Merrick Garland of the federal appeals court for the District of Columbia.
      Garland was on the long list of possible candidates last year, but from the outset Obama was known to be looking for a woman to join Ruth Bader Ginsburg as a second female justice.
      All three of the supposed front-runners are given high marks for collegiality, one of the important skills for working effectively on a court with nine members who have to work together over a span of many years. As dean of Harvard Law School, Kagan was widely praised for working with high-profile faculty members from one end of the ideological spectrum to the other. Garland and Wood have both served as judges on ideologically fractious federal appeals courts for more than a decade — Wood since 1995, Garland since 1997.
      All three candidates are viewed as generally liberal in their legal views, with Wood seen as the most liberal of the three and Garland perhaps the one least likely to prompt a confirmation fight with Senate Republicans. With a 59-vote majority, however, Senate Democrats are well situated to get Obama’s nominee confirmed, probably before the congressional recess in August.
      Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., called on senators from both parties to make the confirmation process “a thoughtful and civil discourse.” Leahy presided over Sotomayor’s four-day confirmation hearings last July. The Judiciary Committee divided along party lines in approving Sotomayor’s nomination, with only one Republican — South Carolina’s Lindsey Graham — joining Democrats in supporting her. With Democrats then enjoying a 60-vote majority, Sotomayor was confirmed by a vote of 68-31, with all but nine Republicans casting all the no votes.
      Stevens’ decision comes 11 days before his 90th birthday. He is the second oldest justice in history, after Oliver Wendell Holmes Jr., and ranks fourth in longevity on the court, after Justices William O. Douglas and Stephen Field and Chief Justice John Marshall. Among the three leading contenders for the seat, Wood and Garland are both in their late 50s; Kagan turns 50 later this month.
      As the senior justice, Stevens speaks second, after Chief Justice John G. Roberts Jr., in the post-argument conferences where the justices lay out their positions on cases and take a preliminary vote. If the chief justice is in the minority and Stevens in the majority, Stevens assigns the writing of the majority opinion.
      Over the past few years, Stevens has taken some of the most important decisions for himself — including two of the decisions that rejected Bush administration positions dealing with Guantanamo detainees. But he has also given some major decisions to other justices. For example, Stevens assigned a third Guantanamo-related decision and the 2003 ruling that overturned anti-sodomy laws to Justice Anthony M. Kennedy, who occupies a swing-vote position between the opposing blocs of four conservative and four liberal justices.
      With Stevens’ departure, the dynamic in the conference will change. Justice Antonin Scalia will become the second most senior justice followed by Kennedy and Justice Clarence Thomas. Ginsburg, fifth in seniority, will be the first of the liberal justices to have a chance to speak in conference. The impact on decision-making is hard to predict, but liberal advocates cannot help but be concerned.