Battle looms as Justice Stevens says he’s retiring
Justice John Paul Stevens, a Republican-appointed justice who emerged as a leader of the Supreme Court’s liberal wing over his 34-year tenure, announced his retirement Friday, setting the stage for what is expected to be a bitter partisan battle over his replacement.
Stevens sent a letter to President Obama on Friday, which read: “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 active service.”
The announcement was not a surprise, but the timing was. Stevens, 89, was widely expected to wait until after the high court’s oral arguments concluded at the end of the month. He will step down when the court’s term ends in June or July.
Senate Republicans served notice that they planned to closely scrutinize Obama’s choice, but they said they would reserve comment until a nominee was chosen.
“As we await the president’s nominee to replace Justice Stevens at the end of his term, Americans can expect Senate Republicans to make a sustained and vigorous case for judicial restraint and the fundamental importance of an even-handed reading of the law,” said Senate Minority Leader Mitch McConnell (R-Ky.).
The White House has been preparing to fill Stevens’ vacancy for months and appears to be focused on three candidates: Washington-based federal appeals court Judge Merrick Garland, 57; Solicitor General Elena Kagan, 49; and Chicago federal appeals court Judge Diane Wood, 59.
The White House is now faced with a heady political calculation. It could invest its efforts, energy and capital in a potentially draining fight this summer over a Supreme Court nominee like Wood, who has made controversial rulings on abortion and would almost certainly face a raging firefight over her confirmation.
Or it could move toward a less-controversial selection, such as Garland, in a bid to bolster its domestic agenda before this year’s congressional elections. Garland has been spoken of favorably by some conservatives, and Kagan is also seen as less combustible than Wood.
Administration officials say that the selection process will take place over the next several weeks and that beyond the three leading candidates, at least seven other names are being considered. Speculation has also arisen around Michigan Gov. Jennifer M. Granholm, Massachusetts Gov. Deval Patrick, and Sen. Amy Klobuchar (D-Minn.), although the White House would not confirm they were under consideration.
“I will move quickly to name a nominee,” Obama said Friday in a statement. It will be “someone who, like Justice Stevens, knows that in a democracy special interests should not be able to drown out” the public’s interest.
Obama, who had drawn criticism for saying that he wanted a nominee with “empathy” before he nominated Justice Sonia Sotomayor last year, phrased his criteria for a new candidate this way: “While we cannot replace Justice Stevens’ experience or wisdom, I will seek someone in the coming weeks with similar qualities -- an independent mind, a record of excellence and integrity, a fierce dedication to the rule of law, and a keen understanding of how the law affects the daily lives of the American people.”
Obama, who returned Friday from Prague after signing a nuclear arms treaty with Russian President Dmitry Medvedev, said he had spoken to Stevens by telephone. Stevens emphasized the importance of naming a replacement before the court’s next term, Obama said, suggesting that he would.
“When President Ford was faced with a Supreme Court vacancy shortly after the nation was still recovering from the Watergate scandal, he wanted a nominee who was brilliant” and committed to the law, Obama said, hailing Stevens as a justice who “has stood as an impartial guardian of the law . . . with fidelity and restraint. . . . He will turn 90 this month, but he leaves this position at the top of his game.”
On paper, it would seem that this would be Obama’s last chance to appoint an assertively liberal choice to replace Stevens, who emerged as the loudest voice of the court’s left wing. Democrats hold a large majority in the Senate. Next year, their grip on the chamber could be much more tenuous.
Christopher Eisgruber, a former clerk of Stevens’ and a professor at Princeton University, said the president should not be afraid to select a more liberal nominee, because Republicans will oppose his choice regardless.
“Since he’s likely to have a fight, he shouldn’t shy away from an outstanding judge or attorney he would otherwise nominate,” he said.
But Obama confronts a decidedly different environment than last year, when he selected Sotomayor, then a New York federal appeals court judge.
Obama sits at his lowest ebb in his popularity with the public, and Democrats no longer hold a filibuster-proof majority in the Senate, meaning that Republicans could potentially block a controversial pick -- or at least threaten to.
Moreover, the administration plans to spend most of the rest of the year convincing a skeptical electorate of the benefits of the healthcare overhaul and advance a domestic agenda focused on job creation and jump-starting the economy.
“I think the difficulty for Democrats is not so much the battle itself, but it’s the timing,” said Peter Fenn, a Democratic political consultant. “It’s going to make it, I think, a little difficult . . . to push through some of the legislation they want to get done between now and November.”
In the wake of Obama’s healthcare victory, Senate Democratic leaders plan to move as quickly as possible toward enacting the financial regulation bill -- a major revamp that would mark another accomplishment for Democrats to carry into the midterm election.
Processing a Supreme Court nomination will consume big chunks of time and attention, although at the outset it will be handled mostly within the Senate Judiciary Committee. It may not consume the full Senate until summer or fall.
But some warn that Obama’s nomination, if it sparks a fierce partisan response, could poison the political environment on other issues.
“He still has a fairly ambitious agenda between now and November,” said Ryan Patmintra, press secretary to Senate GOP whip Jon Kyl of Arizona. “Does he want to pick his battle here?”