Stevens, who turns 90 on April 20, has told colleagues he wants to
decide soon -- for his own peace of mind -- but also to give the White
House time to select a replacement and for the Senate to confirm the
nominee.
He was not on the bench for a brief public session
Monday; the court will hold its next public session in two weeks.
Sources
close to him suggest he could announce something during this two-week
recess, or shortly after the high court's oral arguments end for the
term April 28. As of late last month, Stevens had not formally made up
his mind, the sources said.
Those sources asked not to be
identified because they are not authorized to speak for Stevens, who
himself has only hinted at his future.
CNN Senior Legal Analyst Jeffrey Toobin, who interviewed the
media-shy justice in early March, is convinced he will leave the court
this year. "The fact that he's given interviews to me and others, which
is also very out of character for him, suggests that this is part of a
leave-taking operation," Toobin said.
But several close friends
suggest Stevens may wish to stay for another year, and several former
law clerks have privately encouraged him to do just that.
Sen.
Arlen Specter, D-Pennsylvania, a member of the Judiciary Committee that
would hold confirmation hearings for any replacement, urged Stevens to
delay his exit.
"I think the gridlock in the Senate might well
produce a filibuster, which would tie up the Senate on a Supreme Court
nominee," Specter told Fox News Sunday. "I think if a year passes,
there's a much better chance we can come to a consensus."
Speculation
over Stevens
has increased since he confirmed last fall he had hired only one law
clerk for the next court term, which begins in October. Sitting justices
can hire four law clerks, while retired members only get one.
The
White House has quietly but actively prepared for weeks in anticipation
of a vacancy, government sources told CNN. Top officials have no
specific information that Stevens or even another justice will retire
after the court's session ends in late June, but want to be ready, those
sources emphasized.
Obama nominated
Justice Sonia Sotomayor last year, putting the first Hispanic on the
court. Democrats cited that choice as a uniting force among
progressives, saying it gave the president a signature moment in his
first year in office. White House officials privately express hope
another high-profile nomination would build political momentum in an
election year.
"There isn't an immediate candidate who could give
them just as much the second go-around," said Thomas Goldstein, a
prominent Washington lawyer and founder of Scotusblog online. "There
isn't a candidate who has Justice Sotomayor's
personal history and also her ethnic background. But I think that the
model for the administration is probably the same -- get someone in
there who doesn't generate a lot of political heat against you and is a
relatively easy person to confirm."
Some Senate Republicans
certainly hope that will be the strategy.
"I think the president
will nominate a qualified person. I hope, however, he does not nominate
an overly ideological person," said Sen. Jon Kyl, R-Arizona, another
member of the Judiciary Committee, told Fox News on Sunday. "That will
be the test. And if he doesn't nominate someone who is overly
ideological, you may see Republicans vote against the nominee, but you
won't see them engage in a filibuster."
Government sources say
three candidates top the current, informal list of possibles at this
very early stage:
• Judge Diane Wood, 59, of the Illinois-based
7th Circuit U.S. Court of Appeals. Many administration insiders believe
this Texas native would be a strong intellectual force on the high
court, where the newly emboldened conservative justices have achieved
recent victories on campaign finance reform and gun rights.
•
Solicitor General Elena Kagan, 49, who has no judicial experience but
has impressed the White House with her skill arguing a range of
important cases before the Supreme Court as the government's top
appellate attorney.
• Judge Merrick Garland, of the U.S. Court of
Appeals for the D.C. Circuit. The 57-year-old Chicago, Illinois, native
is considered more moderate than other leading candidates, and his
confirmation could be considered a relative breeze.
All three
were among nine finalists last year for the seat that went to Sotomayor,
said sources with knowledge of the process. She, Wood and Kagan were
personally interviewed for the job by the president, they said. Homeland
Security Secretary Janet Napolitano also met privately with Obama last
May, and remains in the mix, sources said.
Other possible
contenders could be Cass Sunstein, 55, an old law school associate of
Obama and head of a key White House agency; and Massachusetts Gov. Deval
Patrick, 53, a longtime friend of the president. Patrick is favored by
some insiders but is seeking re-election this fall to his current job.
It took about 26 days for Obama to announce his selection of
Sotomayor, but officials hint the president may be prepared to move much
faster if Stevens steps aside.
Cynthia Hogan, Vice President Joe
Biden's chief counsel, headed the day-to-day vetting and confirmation
process for Sotomayor, and government sources say she would be likely to
play the lead role again. Obama's new White House counsel, Bob Bauer,
also would be likely to serve a key liaison role, given his long
political experience working as an adviser to several Democratic
lawmakers.
One source said if Stevens were to retire, there would
be less political pressure on Obama to name another woman to the court.
Justice David Souter's exit led to universal agreement inside the White
House that a woman should join Justice Ruth Bader Ginsburg, then the
lone female on the court.
Many advocacy groups believe there will
be a high court vacancy this year, and have already sounded the alarm
on the political and social stakes.
"If in fact Justice Stevens
is stepping down, he's been a major strategist and tactician on the
court," said Nan Aron, president of the left-leaning Alliance for
Justice. "The president should start putting together a list of names of
individuals who can begin to change the conversation on the court and
assert a leadership role."
Aron cited Wood as someone with a long
record of taking strong stands on a variety of key issues.
On
the right, many observers seem confident that in an election year filled
with several legislative challenges, Obama could have a hard time
choosing a high court nominee with a clear liberal portfolio.
"The
burden of proof is clearly on the White House with any future Supreme
Court nominations," said Gary Marx, executive director of the
Virginia-based Judicial Crisis Network. "It was assumed on the last
go-around that it would be more of a rubber stamp," with Sotomayor
winning easy confirmation. "But we're in an entirely new world
politically. Obama, I think, wants to take a more aggressive posture,
and continue to appeal to his liberal base with the next court nominee,
but the Democratic Senate may decide it's not in their best interest to
hitch their wagon to the president."
One legal source who was
deeply involved in the vetting process for Sotomayor cautioned against
Obama picking what was termed a "liberal [Antonin] Scalia," saying, "it
could derail the president's entire agenda, by picking a fight over
ideology. Very much in line with his philosophy of picking qualified,
thoughtful judges, the president was extremely successful naming Judge
Sotomayor last year. I'd expect him to follow that same path if we get
something this year."
One sign of encouragement
for Democrats was the president's strong tone dressing down high court
conservatives in his recent State of the Union address. Obama criticized
the majority's ruling giving corporations greater power to spend their
money in federal elections, causing Justice Samuel Alito, sitting in the
audience, to shake his head and mouth words interpreted as "not true."
Comments (0)
Tell friend
Print
