After a month of announcing that he “might be” retiring, the liberal stalwart Justice John Paul Stevens made it official this morning. Effective at the end of the Supreme Court’s term next month, Stevens told President Obama in a letter this morning that he would be stepping down, keen to the timing requisite for Obama to appoint another, and ideologically similar, jurist.
Even while Stevens’s seat is still warm, the Beltway speculation now quickly turns to who will replace him. According to a White House official who spoke prior to Stevens’s announcement, Obama is likely to use the same shortlist as last year, when he selected Justice Sonia Sotomayor to fill the vacancy left by David Souter. A look at the possible contenders:
Elena Kagan. As solicitor general (and the first female, to boot), Kagan has a sufficient background in the workings of the court and constitutional law. She also has something in common with Obama: both are graduates of Harvard Law, where Kagan even served as dean until 2008. Kagan isn’t an obvious ideologue, but may have several spots on her record. Republicans argued last January, during her confirmation hearings as solicitor general, that she lacked courtroom experience, which is true, and that she showed her ideological colors by opposing on-campus military recruiters at Harvard. If that confirmation vote—61-31—is any indication, this time around would be a squeaker.
Diane Wood. Wood is a seasoned jurist, having sat on the Seventh Circuit since 1995, and has a history of fiery exchanges with conservative jurists. But that’s only because Wood leans fairly hard to the left. Upon hearing that Wood was being considered by Obama for the court last year, pro-life groups circulated memos calling her “strongly pro-abortion”—a stretch of the truth, but still a signal that opponents would turn her nomination into an irreconcilable battle solely about abortion. But one reason Obama may still choose Wood is because he can personally vouch for her record. Like Kagan, Wood has an academic commonality with Obama: both served as lecturers at the University of Chicago in the '80s.
Merrick Garland. On a list dominated by women, Garland—a justice on the D.C. Circuit Court—was considered the nominee least likely to face significant Republican opposition last year. This was underscored, perhaps, by Garland's collegial relationship with Chief Justice (and right-leaner) John Roberts, with whom he served for two years on the federal bench before Roberts was elevated to the high court in 2005. There’s a good reason the White House would go with Garland. A centrist with already some GOP support, Merrick would prevent Obama from having to spend additional capital on a fierce nomination fight, especially as contentious debates on energy and financial regulation lay ahead. But on the downside, Garland is white, male, and, at 57, not in the game for too long. Seeking a legacy pick and more gender diversity on the bench, the White House might rather select a female, and someone younger.
Janet Napolitano. Napolitano made waves after last December’s Christmas Day bombing attempt when, in her role as secretary of Homeland Security, she said on TV that “the system worked.” But if that’s the only smudge on her record, she’d be a strong candidate. (A White House source said the president thinks “very highly of her.") Napolitano’s broad experience—she was a federal judge, then a U.S. attorney, before becoming attorney general and then governor of Arizona—offers a padded résumé for Obama to tout in announcing her qualifications for the court. But the downside is that, having held so many political positions, Napolitano has undoubtedly amassed a list of foes who would funnel significant money and rhetoric to derail her.
As with any decision in Washington, the politics may be more important than the people. As opposed to Sotomayor’s nomination last year, this time around the White House deliberations are more likely to be about who can get through than who would be best for the court. Trying to identically replace Stevens, the court’s longtime liberal lion, will set up a partisan battle bitter enough to end in certain defeat. But nominating someone too centrist could shift the balance of the court and enrage Obama’s liberal supporters who fear an overturning of Roe.
Still, despite the gravity of the decision, none of the shortlisters would bring a terribly heated confirmation hearing. That's too bad for the cable channels that feed on tension. But for Obama, nothing would be better.
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