Friday, April 9, 2010

Stevens to Retire, Giving Obama 2nd Supreme Court Pick

Nation

Andrea Stone

Andrea Stone

Senior Washington Correspondent

WASHINGTON (April 9) -- John Paul Stevens, the senior justice on the U.S. Supreme Court and the leading liberal on the nine-member bench, said today he would retire when the current session ends in June.

The long-expected announcement gives President Barack Obama his second chance to shape the high court following his appointment last year of Sonia Sotomayor as the first Hispanic justice.

Stevens, who made the announcement 11 days before he turns 90, had hinted in interviews recently that he would step down soon after more than 34 years on the bench. His decision makes him No. 4 on the list of longest-serving justices.

In a statement, Chief Justice John Roberts said Stevens "has enriched the lives of everyone at the Court through his intellect, independence, and warm grace."

Obama was expected to make a statement in the White House Rose Garden about the West Virginia coal mine disaster after his return from a nuclear summit in Prague. He will likely take the opportunity to talk about Stevens.

Even before Stevens made it official, speculation about the leading candidates to replace him had begun. Among the most-often mentioned contenders are Solicitor General Elena Kagan, 49; and federal appellate judges Merrick Garland, 57, and Diane Wood, 59. All were also mentioned before Sotomayor was chosen.

Stevens was a moderate Republican when President Gerald Ford appointed him in 1975. Over the years, he morphed into the leader of the court's liberal wing, now in the minority. His announced departure gives the White House time to review and vet candidates in advance of what promises to be a hot summertime confirmation confrontation on Capitol Hill.

Pennsylvania Democratic Sen. Arlen Specter, former Republican chairman of the Senate Judiciary Committee, predicted a filibuster fueled by partisan gridlock before the midterm elections in November. Sen. John Kyl, the second-ranking Republican in the upper chamber, said his party would block any nominee who is an "overly ideological person."

Whoever Obama picks to replace Stevens is unlikely to tip the ideological balance on the bench. Under Roberts, the court has been moving right, especially when Justice Anthony Kennedy swings his vote that way.

Solicitor General Elena Kagan, left, and federal appellate Judges  Merrick Garland, center, and Diane Wood
AP
Who will President Barakc Obama appoint to replace retiring Supreme Court Justice John Paul Stevens? The candidates are said to include Solicitor General Elena Kagan, left, and federal appellate Judges Merrick Garland, center, and Diane Wood.
Because Democrats lack a filibuster-proof majority in the Senate, which must confirm the president's selection, it's doubtful Obama will pick someone as liberal as Stevens. His finalists to replace David Souter were hardly liberal mirror images of conservative maverick Justice Antonin Scalia.

Barry Friedman, a constitutional law professor at New York University, said it is important that Obama choose someone "with leadership capacity" but rejects the idea that the left needs its own Scalia to vocally champion its views on the court.

"I think that's wrong," he told AOL News. "Scalia has been an ineffective justice. It takes five votes to get anything done, and he often insists on writing for himself. Same with [fellow conservative] Clarence Thomas. The president needs someone who can build coalitions. Stevens was pretty good at that."

Pamela Harris, a former law clerk for Stevens, said none of the current liberal justices has demonstrated the ability to weave majorities in close cases.

"I don't think there is anybody who can replace Justice Stevens in the role that he's been playing as a leader of the more liberal coalition on the court," said Harris, now executive director of Georgetown University's Supreme Court Institute. "I do not think there is anybody sitting on the court today who can fill that gap."

Harris said Stevens "exercised real leadership" in cases where Kennedy's vote was crucial. She noted Hamdan v. Rumsfeld, in which the court struck down President George W. Bush's military commissions system as unconstitutional. "Victories like that may be harder to win," she said.

Still, there are contenders:

Ruth Bader Ginsburg: By virtue of her seniority and philosophical inclination, the leadership mantle should be hers for the inheriting. But Ginsburg, who turned 77 last month, has suffered from poor health, most recently undergoing surgery for what doctors diagnosed as early-stage pancreatic cancer. Despite the disease's bleak survival rates, Ginsburg has shown no signs of stepping down and recently fired back at a Republican senator who suggested she isn't long for the bench.

As the court turned right under Roberts, and with the help of fellow Bush appointee Samuel Alito, Ginsburg has spoken out more. When a sharply divided court ruled against tire factory supervisor Lilly Ledbetter in a pay discrimination lawsuit, the former women's rights advocate read a rare but stinging dissent from the bench.

"By dint of longevity, power of intellect and integrity, Stevens was a very powerful influence," said Harvard University law professor Richard Fallon. "I don't have the sense that [Ginsburg] is boldly visionary."

"Justice Ginsburg is sadly too frail, even as her strength of conviction is unquestioned," said Douglas Kmiec, a conservative Pepperdine University law professor now serving as U.S. ambassador to Malta. He gave his views in an e-mail to AOL News, noting his views "are mine personally and do not represent the U.S. Department of State or the president necessarily."

Stephen Breyer:
Though he is junior to Ginsburg by a year -- both were selected by President Bill Clinton -- Breyer may be the leading progressive voice on the court, a prolific writer who can go word-for-word with Scalia.

"If there is a leader, it is Breyer," said University of Texas at Austin law professor Sanford Levinson. "He's written books, he goes out and makes talks in ways [Ginsburg] doesn't, he debates Scalia. By all accounts, he is very, very upset about the current trend of the court and has an incentive to try to lead it."

Kmiec disagrees. Breyer's "penchant for the complex makes it unlikely that he can articulate court rationales that will attract his colleagues to a truly progressive vision," he wrote.

Sonia Sotomayor:
Depending how quickly Obama and the Senate act, she may spend less than a year as the junior member, and that could elevate Sotomayor to a more high-profile role, Harris said. Even as the newest justice, the Bronx native has shown nary a hint of freshman jitters, bluntly throwing out questions in frequent and rapid order from the bench.

"Sotomayor is a definite possibility," Kmiec wrote. "She has the respect of the entire court for her attention to record detail; for her hard work; and for her unwillingness to be cowed by the strongest conservative voice (Scalia) or strategist (Roberts). Her progressive vision is also reasonably clear, looking out for the underserved minority especially."

But, he added, Sotomayor may be less able to persuade Kennedy. "They frankly speak in entirely different judicial idiom," he wrote.

None of the above
: Now that Stevens has set a departure date, Kmiec said, "The progressive leader will be -- as they say in baseball -- a player to be named later."

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