John Paul Stevens Retiring: Top Picks To Be The Next Supreme Court Justice
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In an interview in early March, Supreme Court Justice John Paul Stevens said he would make up his mind in about a month's time about when to retire from the High Court. That deadline is fast approaching.
The anchor of the court's liberal wing, Justice Stevens has made it clear that his days on the bench are numbered. Stevens told legal savant and New Yorker contributor Jeffrey Toobin the following: "You can say I will retire within the next three years. I'm sure of that."
Speculation about the timing of a Justice's retirement invariably tends to be just that -- speculative. (Prognosticators who tried to divine the direction of monetary policy by looking at the size of ex-Fed Chairman Alan Greenspan's briefcase were proven embarrassingly wrong). But where Justice Stevens is concerned, the signs are increasingly suggestive: the octogenarian is on the brink of turning 90 and last fall, he appointed a single law clerk, as opposed to his usual four.
Justice Stevens has been a valiant, ferociously independent and outspoken member of the Court, attributes on display in his recent dissent in Citizens United v. Federal Election Commission, a ruling on the use of corporate contributions for political campaigns. But though Stevens is one-of-a-kind, there's always room for a little informed speculation about who might replace him.
The Huffington Post interviewed a host of constitutional law professors and other legal cognoscenti. Here's a look at the candidates that have emerged as leading contenders for Justice Stevens' seat on the bench, with more reporting about each potential new Justice below.
There appears to be a growing consensus that Solicitor General Elena Kagan is the front-runner for the position. Kagan comes armed with a formidable set of credentials: Associate White House Counsel during the Clinton Administration; Professor and then Dean of Harvard Law School; and now, Solicitor General of the United States, the appointee tasked with representing the U.S. Government in cases before the Supreme Court.
At Harvard, Kagan forged a reputation for herself as a savvy consensus-builder, uniting a factious faculty divided along ideological lines.
"She has a terrific political sense," says Charles Fried, Professor at Harvard Law School and Solicitor General in the Reagan administration. "She knows how to frame issues so that people see things her way."
Her interpersonal political prowess shone through in a law school then plagued by inertia.
"The faculty had been divided politically on left-right grounds and had difficulty making [faculty] appointments," explains Harvard Professor Mark Tushnet. "But she was able to break the logjam by explaining to people that the law school was stagnating and that it could move forward only if it overcame these issues."
On a fractured Court with an ascendant right wing, her capacity for persuasive diplomacy could prove pivotal.
Equally in Kagan's favor is the absence of a potentially compromising judicial paper trail. In the wake of a bruising health care debate, it's likely that President Obama will want to minimize the amount of political capital he expends on a Supreme Court nominee.
"Kagan is unique in that, like Justice John Roberts, she's universally respected but hasn't written on divisive topics that could make confirmation difficult," says University of Pennsylvania Law Professor Theodore Ruger.
Kagan, 49, also has youth on her side. Opting for a young Supreme Court nominee has traditionally allowed a President to extend his influence beyond his term in office and cement his political legacy, a trend that arguably started with President Reagan's appointment of Antonin Scalia, who was 50 at the time of his nomination to the bench.
Judge Diane Wood of the Seventh Circuit Court of Appeals has been firmly entrenched on the Democratic short list for the Supreme Court.
Appointed in 1995 by President Clinton, she has amassed a substantial judicial track record and served as a liberal foil to conservative heavyweights on the Circuit Court, including Richard Posner and Frank Easterbrook. She previously burnished her credentials as a lawyer on the Antitrust Division of the Department of Justice.
"She fits the mold of every Supreme Court Justice over the last 25 years," says Cornell Law Professor Michael Dorf, referring to her status as a Circuit Court Judge.
Unfortunately for Judge Wood, her judicial record could prove polarizing.
"She has a body of record on a number of hot-button issues, including abortion, which would be fodder for opposition," notes Professor Ruger.
At 59, she is also a decade older than Solicitor General Kagan.
Judge Merrick Garland of the D.C. Circuit Court of Appeals has also received a considerable degree of attention.
Garland is generally considered a moderate. But his prior work under the Criminal Division of the Department of Justice, says Professor Tushnet, could "give him a pro-prosecution bent. He's almost certainly to the right of Wood and Kagan."
In light of Justice Sotomayor's confirmation last year, there is perhaps less demographic pressure on the president this time around. Judge Garland's status as a white male, however, could well handicap his prospects.
Cass Sunstein, a former law professor at Harvard, last year joined the Obama administration as the Administrator of the Office of Information and Regulatory Affairs within the Office of Management and Budget. Widely revered in academic circles, he is another serious contender for a spot on the Court.
"Sunstein is probably the most creative and influential legal thinker of the last 20 years," says Chicago Law School Professor Geoff Stone. "He's the most cited law professor in the United States, has been a prolific writer and scholar, has a capacious intellect and would bring to bear an extraordinary knowledge of administrative and constitutional law that would enrich the Court in profound ways."
In the context of a Senate confirmation hearing, however, Sunstein's work -- honest and of staggering scope -- could be easily caricatured.
"He's written freely and speculatively, and so there's no doubt that, if taken out of context, [his work] could be seen as out of the mainstream," Stone acknowledges. "But that would be true of any first-rate academic."
Wild Cards And Sleeper Candidates
In the current political climate, President Obama is likely to want a swift and painless confirmation process for Stevens' replacement. A politically risky or less-than-established nominee is unlikely. Still, a few other names have been bandied about with some frequency.
Outside of the top four favorites, Michigan Gov. Jennifer Granholm appears to be the most widely cited. Comparisons have been drawn between her and Justice Sandra Day O'Connor, a pragmatist who also held public office.
"I think the Court could use the pragmatic governing experience she has," says Professor Steven Schwinn of John Marshall Law School. "Someone like Granholm, who's been dealing with Michigan's problems and hard economic times -- her experience would be invaluable on the Court."
Born in Canada, Granholm could not expect to advance through the ranks and ever become a Presidential or Vice Presidential candidate, making such a position potentially desirable from her perspective. She has, however, yet to express an interest in the position.
Professors Pamela Karlan and Kathleen Sullivan of Stanford Law School, often mentioned together, are candidates that would have been more likely in a less partisan era. Karlan has been cast as a clearly defined liberal. Sullivan appears to be more of a contender for the 9th Circuit Court of Appeals, as opposed to the High Court.
Senator Amy Klobuchar of Minnesota has also attracted some interest. Her nomination, however, would affect the calculus in the Senate and potentially imperil yet another Democratic seat, a gamble President Obama is unlikely to take.