Supreme Court Candidates

Stevens' likely retirement would shake up Supreme Court
Justice's successor won't carry the same influence
By David G. Savage
Chicago Tribune
Updated: 03/28/2010 09:54:13 PM CDT


WASHINGTON " The Supreme Court is about to undergo another generational transition, as the senior leader of its liberal wing, John Paul Stevens, is expected to retire this summer and be replaced by a junior justice appointed by President Barack Obama.

For the moment, the front-runners for the nomination, assuming Stevens does announce his retirement after he turns 90 next month, are said by legal insiders to be U.S. Solicitor General Elena Kagan, 49; Judge Diane Wood, 59, of the U.S. Court of Appeals in Chicago; and Judge Merrick Garland, 57, of the U.S. Court of Appeals in Washington.

They were all once law clerks at the Supreme Court for liberal justices, and they have ties to former President Bill Clinton. Wood and Garland were Clinton appointees. Kagan worked in the Clinton White House.

None of them would likely change the ideological balance of the court. But neither would any of them quite replace Stevens, simply because of his long experience, his gentle persuasiveness and, particularly, his key position as the senior justice on the liberal side for the past 16 years.

When the chief justice votes with the majority, he decides who writes the court's opinion. But if the chief justice does not have a majority, the senior justice in the majority decides on the opinion writing, which can influence the outcome.

"The big impact will be the loss of Justice Stevens' leadership position, which flowed from both his position as senior associate justice and


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his unique combination of personality and persuasiveness," said Paul Clement, former solicitor general in the second Bush administration. "Even if the president can find someone with similar strengths in building coalitions " and that is a mighty tall order " the president cannot make the nominee the senior associate justice."
His departure has a "potentially huge impact, because Stevens has used that opinion-assignment authority with striking effectiveness," said Richard Lazarus, a Georgetown University law professor.

On issues as varied as the death penalty, Guantanamo, gay rights and global warming, the Stevens wing of the court has prevailed in major rulings. But his departure would put Justice Anthony Kennedy in an even more significant spot.

After Stevens, the senior justice would be Antonin Scalia, a 1986 appointee of President Ronald Reagan, but he generally sides with Chief Justice John Roberts. Kennedy, a 1988 Reagan appointee, is next in line.

"Before and after Justice Stevens, it was often the case that if a 'liberal' result is possible, it is because Justice Kennedy is leaning that way," said Walter Dellinger, solicitor general under Clinton. "But after Stevens, Justice Kennedy will be the senior justice in almost any liberal majority, and he will assign the opinion to himself or another justice. It may even, at the margin, influence how he votes."

Dellinger said if Kennedy's view of an issue is between that of the four who lean to the right and four who lean to the left, he could vote with the liberals and control the result.

"He might honestly believe that he can best achieve a result he believes is legally optimal if he leans left and writes a cautious opinion himself," Dellinger said.

Otherwise, if there is a new leader for the court's liberal wing, it figures to be Justice Ruth Bader Ginsburg. She has become more outspoken in recent years, and she will be next in line of seniority after Kennedy.

Stevens' departure, while not official, is to some a foregone conclusion. He has hired only one clerk for the term that begins in the fall, rather than the usual four, and has said it is not exactly news that he is long past the normal age for retirement.

If Stevens indeed decides to retire this year, he is likely to make an announcement in late April after the justices have heard arguments in the last of their cases for the term. This would give the White House time to announce a nominee before the summer and set the stage for another round of confirmation hearings before August.

One is Mr. Obama's solicitor general, Elena Kagan, a former dean of Harvard Law School who was considered for the nomination that ultimately went to Justice Sonia Sotomayor.

Despite her scholarly career, Ms. Kagan hasn't produced the kind of provocative writings that could provide ammunition for conservative opponents, legal experts say.

That also dims enthusiasm for her from liberal groups, who have been hoping for a full-throated progressive ready to joust with such determined conservatives as Chief Justice Roberts and Justice Scalia.

Liberals see a surer voice in another finalist for last year's vacancy, Judge Diane Wood of the Seventh U.S. Circuit Court of Appeals in Chicago. On a court known for its intellectual heft, Judge Wood has proven a serious counterweight to such influential conservative judges as Richard Posner and Frank Easterbrook, legal observers say.

For the same reason, conservative activists say they are more likely to fight Judge Wood's nomination.

A third oft-mentioned name is Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia Circuit.

As a Justice Department official in the Clinton administration, Judge Garland oversaw investigations into the Oklahoma City federal building bombing and the Unabomber, Theodore Kaczynski.

That and several law-and-order decisions as an appellate judge have raised his standing with conservatives, who say they have found little with which to fight a Garland nomination.

That vote will be critical in the fall when business interests open their purses to show just how dangerous Obama's regime has been to our economy.

Because of this, he has a key role. I do not expect that Obama will nominate anyone who is not a knee-jerk far left liberal.

Judging by Obama's previous inclination to be Mr. Bipartisan, I'm willing to bet Dianne Wood is out. His replacement for Stevens may well move the court slightly to the right.

To be sure, General Kagan has done a few things that hard-core conservatives will use in an amateurish-looking effort to paint her as a committed (if somehow simultaneously closet) liberal. Those will get no traction, and if anything the few examples will serve as slight Pepto-Bismol to the left’s heartburn over her nomination. First among these will be her position as Dean that the Solomon Amendment is unconstitutional and her related stated opposition to the military’s position on recruiting homosexuals. Conservatives will contend that these positions reflect an anti-military bias. But the Administration will have no trouble describing General Kagan’s position as reflecting that of Harvard as an institution " a position that was broadly shared among the nation’s elite Universities.

Opponents will try to make something of the nuances of the legal arguments Harvard joined in the Solomon Amendment litigation, which no one will understand or care about. In terms of policy, Don’t Ask, Don’t Tell is on its way out. And the Administration will gleefully offer up to reporters (and the Judiciary Committee) the many students who had served in the armed forces and whom General Kagan hosted at Veteran’s Day dinners each year to honor their service.

At the same time, General Kagan is extraordinarily " almost artistically " careful. I don’t know anyone who has had a conversation with her in which she expressed a personal conviction on a question of constitutional law in the past decade. Now, there are obviously an awful lot of people whom I do not know. But I have never talked to anyone who talked to anyone who had a conversation like that.

Have you seen a webbed profile of Kagan? So far, all my impressions of her came from reading briefs she filed as Solicitor General. They struck me as remarkably well-structured and well-reasoned. But of course, they say little about her legal attitudes, because the legal attitudes she enacted came from her boss.

Although she may not have written a lot of controversial journal articles that doomed Robert Bork, she still drives conservatives into a frenzy.

So the question becomes, is there anything about Kagan that would drive conservatives more nuts than other plausible candidates?

My conjecture is that Justice Stevens will indeed retire after the term and Justice Ginsburg will also do so due to health. Has a President had the opportunity to nominate two new judges at the same time? That should make for great political drama.

"Having concluded that it would be in the best interests of the Court to have my successor appointed and confirmed well in advance of the commencement of the Court's next Term, I shall retire from regular active service as an Associate Justice," Stevens wrote in a letter to the president, stating his retirement would be "effective the next day after the Court rises for the summer recess this year."

The last day of oral arguments is April 28 and the last day of the court will be sometime in the last week of June.