Battle Lines Drawn for Justice Stevens' Replacement on High Court

Friday, 09 Apr 2010 01:16 PM

By David A. Patten

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Washington's worst-kept secret — the pending retirement of Supreme Court Justice John Paul Stevens — became official Friday with his announcement that he will step down when the court takes its summer break in June or July, giving President Obama an opportunity to make his second appointment to the nation's highest court.

"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 commencements of the court's next term," Stevens stated in a letter to the president, "I shall retire from regular active service as an Associate Justice . . . effective the next day after the Court rises for the summer recess this year."

Supreme Court Chief Justice John Roberts released a statement praising the 89-year-old Stevens' more than three decades of service on the court, saying he had "earned the gratitude and admiration of the American people" and had "enriched the lives of everyone at the court through his intellect, independence, and warm grace."

Similarly, Obama lauded the jurist as an "impartial guardian of the law who has worn the judicial robe with honor and humility."

Originally considered a centrist court appointment of President Gerald Ford, Stevens had frustrated conservatives with a judicial perspective that seemed to drift steadily to the left in recent years. Assuming that Obama nominates another liberal jurist, it would not alter the ideological balance on the court.

The president expressed urgency in filling the opening, saying, "Once again I view the process of selecting a Supreme Court nominee as among my most serious responsibilities as president.

Conservatives hoping that Obama would drop the "empathy standard" that he proposed during the confirmation battle over Supreme Court Justice Sonia Sotomayor were no doubt disappointed by his remarks.

Obama laid out three qualities he would look for in his next nomination to the nation's highest court: an independent mind-set, a record of "excellence and integrity," and "a keen understanding of how the law affects the daily lives of the American people."

Conservatives have long maintained that judges should be bound by the Constitution's original language, and should strive for impartiality while not being overly influenced by their personal reactions to the cases that come before them.

As if to drive home the point Friday that he does not share that view, the president declared that Supreme Court justices should not allow powerful interests to "drown out the voices" of American citizens.

That statement also may have been a reference to Obama's remarks during the joint session of Congress, when he chastised the black-robed chiefs of the judicial branch of government, saying they had "reversed a century of law to open the floodgates for special interests, including foreign corporations, to spend without limit in our elections."

Obama, who received millions in overseas donations during his presidential campaign, told Congress, "Well I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities. They should be decided by the American people, and that's why I'm urging Democrats and Republicans to pass a bill that helps to right this wrong."

Now President Obama will have an opportunity to nominate a second Supreme Court Justice, who may well rule on whether that and other recent decisions will be reversed.

Even before news of Stevens' retirement reached Pennsylvania Avenue, forces on both sides of the ideological divide began gearing up for a likely battle over his replacement.

"I would expect the president to nominate the most liberal, radical person that he can find, because he is unlikely ever to have the numerical superiority in the Senate that he has today," Fox News legal expert Andrew Napolitano told the Heritage Foundation. "Right now, I think [Obama] could get through just about anybody, no matter how radical their views might be. This is far to the left of Justice Stevens, who's no friend of a Jeffersonian view of America. But he's not a wild-eyed lefty, which is probably what we'll get."

Harvard law school professor Alan Dershowitz told MSNBC that Stevens' retirement also marks the departure of the lone Protestant serving on the court.

"Although I think religion should be irrelevant myself personally, it's hard to imagine the Supreme Court that doesn't have a single Protestant serving on it in a country that's dominantly Protestant,” Dershowitz said. “It may show that we're really eliminating religious tests as the Constitution requires us to do, but one at least will wonder whether that will be a totally irrelevant factor."

Several conservatives expressed the concern that Obama would appoint a jurist who relies on empathy and social-justice sentiments rather than basing decisions on the original intent of the authors of the Constitution.

“President Obama needs to replace Justice Stevens with a person who will apply the Constitution strictly and not substitute their own political beliefs for the rule of law," Tom Fitton, the president of the conservative Judicial Watch organization, told Newsmax in an e-mail. "If President Obama nominates an 'empathetic' liberal judicial activist, he will have a fight on his hands.

"With looming constitutional challenges concerning Obamacare and new rights for foreign terrorists, the United States Senate should ensure that only a judge who will strictly interpret the U.S. Constitution is approved. Given the stakes, every U.S. senator should know that the upcoming Supreme Court vote will be as closely watched as their votes on Obamacare,” Fitton said.

As Fitton's remarks suggest, Republicans already are debating whether an extended and bitter fight over the next Supreme Court nominee would help them sharply define their differences with Democrats, in a way that could play to their political advantage in the upcoming midterms.

So far, pro-life advocacy organizations are nervous about the names they've seen floated.

"There are several nominees on the president's short list of replacements for Justice Stevens who have a radical track record on the abortion issue," Charmaine Yoest, president and CEO of Americans United for Life, told the media. "If a nominee is selected who is committed to imposing his or her social agenda on the Court, rather than interpreting the Constitution fairly, we will work to oppose their confirmation vigorously."

Now attention shifts to the president's shortlist of likely nominees. One interesting name on the list: Homeland Security Secretary Janet Napolitano. The 52-year-old Napolitano is a former federal prosecutor who was elected attorney general and governor of Arizona. Napolitano was among those reportedly being considered when Sotomayor got the nod for the previous Supreme Court vacancy.

Some pundits believe her penchant for gaffes — she has referred to terrorist attacks as "man-caused disasters" and remarkably asserted "the system worked" after the Christmas Day bomber nearly destroyed a Detroit-bound jet — have hurt her chances. But politicians on both sides of the aisle have credited her with taking a no-nonsense approach to law enforcement, and for being a capable administrator.

Others thought to be under close consideration:
  • Diane Wood. A former University of Chicago law professor who was appointed to the U.S. Court of Appeals for the 7th Circuit in 1995, Wood, 59, is considered the most liberal of those believed to be on the shortlist. Obama interviewed her for the appointment Sotomayor ultimately won, a clear indication she is an elite prospect. Progressives champion her cause in part because, as the National Journal's Stuart Taylor Jr. puts it, she's known for "going toe-to-toe with the conservative intellectual heavyweights on the federal bench." She's such a strong advocate of abortion rights that her nomination would be sure to draw a firestorm of criticism from the right.
  • Elena Kagan. Some consider her the obvious front-runner. She is the U.S. solicitor general, the first woman to hold that office. She brings a notable record as a professor and former dean of Harvard Law School, where she actually helped recruit some conservative professors. She is just 49, and legal experts say she has avoided taking controversial legal positions that could complicate her nomination battle. At Harvard, she called the law banning gays from military service "a moral injustice of the first order."
  • Merrick Garland. Considered another intellectual superstar, Garland is considered a moderate Democrat. At 57, the D.C. circuit judge would be the easiest of the top candidates to slip through the Senate confirmation process, sources say. One view is that he would be more acceptable to the left.
  • Harold Koh. The former dean of Yale Law School now is a legal adviser to the State Department. One criticism Koh would be sure to face from conservatives: his support for transnational judicial theories, the notion that U.S. courts should look beyond America's shores for judicial precedents and doctrines. Koh has maintained in his academic writings that foreign legal precedents provide a justification for U.S. court rulings in some circumstances, such as the death penalty and same-sex marriage.
Among the accolades that poured in for Stevens following his announcement:
  • Sen. John Cornyn, R-Texas: “Justice Stevens devoted his career to our nation’s judicial system, participating in some of the most important cases in our history. While he and I may have different judicial philosophies, I thank Justice Stevens for his service, and I wish him well in his retirement."
  • Senate Majority Leader Harry Reid, D-Nev.: “Justice Stevens has been a strong presence on the Court for almost 35 years and worked to build consensus and protect the rule of law. I honor his service to America and wish him well in his retirement."
  • Sen. Dick Durbin, D-Ill.: "Justice Stevens’ commitment to expanding freedom, safeguarding our rights and liberties, and understanding the challenges faced by ordinary Americans will be his legal legacy. He has had no judicial agenda other than fidelity to the law and the Constitution."
The SCOTUSblog that closely follows possible appointments is shooting down two long shots: Secretary of State Hillary Clinton and the president's regulatory czar, Cass Sunstein, who is a former Harvard professor.

“Sunstein is the left’s Alex Kozinski or Richard Posner — although stunningly brilliant, too much of a free thinker to be nominated to the Supreme Court,” SCOTUSblog said.

It added of Hillary Clinton: “Suggestions that the president would appoint Hillary Clinton are as crazy as previous speculation that Bill Clinton could get the nod."

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