Call it the Stevens Supreme Court Scramble — both sides are preparing for the next confirmation battle royale, should Justice John Paul Stevens’ strong hints in recent days that he’ll soon retire pan out.
Law professors and congressional staffers who have handled confirmations tell me that Solicitor General Elena Kagan has a good chance of making the top of President Obama’s short list again, as she did when Sonia Sotomayor got the nod last year. Obama was widely impressed with her during his round of selection meetings, and she has already been thoroughly vetted. She also has the advantage of having been confirmed to her current post last year with seven Republican votes.
“It would be hard for Republicans to explain how they voted to confirm her for solicitor general without hesitation but she is now unacceptable,” UC Berkeley law professor Daniel Farber, who clerked for Stevens early in his career, told me in an interview.
Kagan was dean of Harvard Law School before joining the administration, and also worked in the Clinton White House. She was confirmed by the Senate on a 61-31 vote in March 2009, drawing criticism from Republicans for not allowing military recruiters on the Harvard campus. But Republicans blocked her 1999 nomination to the D.C. Circuit Court of Appeals.
If Stevens, 89, is indeed the next retirement (remember that Ruth Bader Ginsburg has been the subject of retirement rumors for a long time), Obama is likely to have more political flexibility in nominating a male justice. President Bush replaced Sandra Day O’Connor with Sam Alito, reducing the number of women on the court to one. Other names floating around out there are D.C. Circuit Appeals Court Judge Merrick Garland, who oversaw the prosecution of Timothy McVeigh for the Oklahoma City bombing. Seventh Circuit Court of Appeals Judge Diane Wood was another top finalist, along with Obama’s Homeland Security Secretary Janet Napolitano, the former governor of Arizona.
But the name game widens from there, with Secretary of State Hillary Clinton or even Vice President Joe Biden bandied about on the Hill. Former Virginia Governor and now DNC Chairman Tim Kaine made it no secret he was interested in one day serving on the bench, but is a longshot choice given his current political job.
Another consideration for Obama is someone with life experiences not represented on the court. For instance, Stevens is the only justice with military experience. But serving as a chief executive also appealed to Obama the last go around, which is why Napolitano and Michigan Gov. Jennifer Granholm (D) remain possibilities.
Farber would like Pamela Karlan of Stanford, whose name arose on a long list last year. She is “outspokenly liberal” and because she is outspoken, “she would clearly get a big fight,” Farber said. Progressives like Karlan, who was briefly considered by the White House last spring. Slate’s Dahlia Lithwick suggested recently that if Karlan doesn’t appear, it means Obama isn’t seriously considering a liberal justice to fill the next vacancy.
A nomination fight now would come at an interesting time, right after the protracted and contentious health care debate, at a high water mark of Senate GOP obstructionism, and with 59 Senate Democrats instead of the 60 of a year ago, not to mention the midterm Congressional elections.
Will Obama go with a safer centrist choice and avoid a protracted fight with elections on the horizon? Or will he try to maintain the current balance of the court by nominating a jurist as liberal as Stevens became late in his career? And if he doesn’t go the progressive route, will his own party get frustrated right when he needs them to turn out this fall to help keep Democrats in power?
From the right you have Judicial Crisis Network (JCN), formerly Judicial Confirmation Network, joining a host of groups aiming to paint any nominee as a judicial activist and extreme.
“All of the factors point to an opening on the court in the very near term, and we’re prepping for anything being possible,” Gary Marx, executive director at JCN, told me in an interview. Marx thinks it might be a longshot but could see Obama nominating Clinton or even Biden to the high court, since it has historically been easier to confirm former senators to such positions.
Last year Justice David Souter announced he would retire on May 1, and Obama nominated Sotomayor on May 26. The confirmation fight played out over the summer and she was seated with plenty of time to help get settled and to participate in the choosing of the court’s fall caseload. Judiciary sources told me they’d like to see Stevens and the president operate on the same time frame.
The White House is mum, saying only that stories about lists — short or long — are premature.
