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John Paul Stevens didn’t really break any news when he revealed this weekend that he would retire sometime within Barack Obama’s term. Thoughts of retirement and being 89 years old go together, and anyway Stevens hasn’t hired enough law clerks for the next court session. What is new is the speculation on replacements for Stevens, which has settled on the Solicitor General and two federal appeals court judges.
The White House has declined to comment on its preparations for selecting a successor, but those close to the process repeatedly have mentioned three names as likely to merit close consideration.
One is Mr. Obama’s solicitor general, Elena Kagan, a former dean of Harvard Law School who was considered for the nomination that ultimately went to Justice Sonia Sotomayor [...]
Liberals see a surer voice in another finalist for last year’s vacancy, Judge Diane Wood of the Seventh U.S. Circuit Court of Appeals in Chicago. On a court known for its intellectual heft, Judge Wood has proven a serious counterweight to such influential conservative judges as Richard Posner and Frank Easterbrook, legal observers say [...]
A third oft-mentioned name is Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia Circuit.
As a Justice Department official in the Clinton administration, Judge Garland oversaw investigations into the Oklahoma City federal building bombing and the Unabomber, Theodore Kaczynski.
I think the typical liberal reaction to these names would be “Huh,” but one informed in legal matters would prefer Wood, be wary of Kagan’s views on executive power (though she was generally fulfilling her duties as Solicitor General in that capacity) and be cool toward Garland.
Dylan Matthews is right to say that none of these picks would alter the ideological makeup of the Court, but I’m not sure that’s in the cards. There are a few judges and legal scholars out there, like Pam Karlan and Kathleen Sullivan, who would actually represent that rare constituency on the Court these days, liberals, but the GOP clearly wants to filibuster Obama’s next nominee, and with those above they would lock arms together and do so. Anyway, we have a President disinclined to pick high-profile fights. Wood represents probably the leftward edge of this selection.
I would say that just replacing judges, even if they fall in the same broad ideological category, has an impact on the Court. Sonia Sotomayor and whoever Obama picks to replace Stevens will sit on the bench for 20 years or more, anchoring the center-left spots. John Roberts replaced William Rehnquist, not changing the disposition of the Court to a great degree, but he lengthened the hold of the Chief Justice from a conservative perspective for a couple more decades. If Obama makes three appointments, even if they do nothing in the near term, they could have long-term effects.
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Meh.
This is ntohing new, the Coward in chief will pick some centrists who hits all the G spots liek being a woman, or being gay or something of the like.
The Supreme Court has nothing to do with who’s best for the job anymore, it’s now about who hits enough Demographics to make Obama look good.
Sotomayor may have been qualified, but there was far better choices out there. What she was however was latina.
and that was all that mattered.
Another chance for the president to screw over and disappoint the radical left to appease the righteous right.
First criteria must obey Da pope.
I really worry Obama is going to pre-compromise again and go with someone more conservative than he should, which the GOP will of course scream about being a liberal anyway. What Obama needs to do is be as bold as possible, pick someone extremely liberal and dare the GOP to fight him.
He won’t, though, if his track record is any indication.
The court is ridiculously unbalanced, hosting judicial activist right extremists like Scalia and Alito, but hosting no true leftist. It is virtually guaranteed that the court’s appointees will political, and so it would be only appropriate for the court’s political views to reflect the entire American spectrum, not just the views of far right crazies.
Is there any evidence from Obama’s history that he actually fundamentally would want any “true liberal” appointed? I have a feeling what he wants is what would get labeled a “moderate conservative” ie an educated, quasi-secular urban Republican – much of what Obama himself appears to be.
Maybe it’s ungenerous of me but I want one of the right wing ideologues to retire or, barring that, I have my fingers crossed for Thomas or Scalia to suffer a debilitating stroke ofr heart attack. Yep, that isn’t the kindest thought I’ve ever expressed and might raise the ire of readers and moderators alike but I’m more about replacing the right wing justices with more liberal ones rather than just maintaining the status quo of the SCOTUS make up.
[Moderator: Let's not go down this road, ok? It's one thing to wish they would retire; another thing entirely to wish harm on a fellow human being.]
Two more ways the pick can matter – one, having someone who would be a leader on the Court, not just a reliable vote, matters. Stevens would probably be considered the leader of the (slightly) liberal wing now. If he is replaced by someone who votes the same but cannot serve that role, it will be a step backwards.
The other thing is how they sell the pick. With Sotomayor, Dems started talking about empathy, which if placed in the proper context, could involve a larger narrative about progressive constitutionalism. Merely using the word, however, did not. But even here, when Republicans squawked, the Dems walked back on empathy for a rather empty formalism. If conservatives are the only ones out there talking about what the Constitution means, then that moves our constitutional discourse to the right regardless of who sits on the Court.
If the White House picks someone who the base can get excited about, and who has impeccable credentials, and really pushes to get it through, I think whoever it is will be confirmed. Just like with health care, they are going to go ballistic anyway, so picking someone who our side cannot get excited about would be a political mistake (leaving aside that we really need a good liberal on the Court.) But SC nominations are almost never sunk if there are no skeletons in the closet and the pick has a solid resume.
Yep, this is a centrist to right court. There are no real liberals nor has Orahma got any on his list apparently.
So Stevens will retire most likely this year or next year, certainly before 2012 and the Presidential campaign. If I had to guess I would say May of next year. That would give him one more session on the Court.
As for choosing a liberal, it’s not in Obama’s political DNA. The filibuster? Weren’t the Democrats going to change that with the new session in January? When an idiot like Alito was up for confirmation, all we heard from Frist were threats of the “nuclear option”. So invoking the filibuster now is really BS. I see it as a way for Obama and Democrats to sell a more conservative choice, but then package it as this was the best they could do. If, however, they really wanted to, they could either force the Republicans into a real filibuster or change the rules for it.
Remember finally Court nominations were supposed to be the ultimate reason given why progressives had to vote for Obama. In typical fashion, the message seems to be that we should not expect this President to make a great choice, or even a good one. He won’t choose an Alito but he very likely will choose a corporatist and a backer of the Imperial Presidency. If it isn’t Kagan it will be somebody like her.
Jane has a fresh cross-post available: New Media Models in Action: “Old Guy on a Plane” Fails Again
It isn’t centrist at all. There are 4 radical conservatives on the Court: Roberts, Alito, Scalia, and Thomas. And Kennedy is increasingly voting with them. So the Court is actually already very far right as it is.
But you have to understand with the exception of about 15 years of the Warren Court, 20 if you want to include some of its aftermath, the Court has throughout its history been outright reactionary. From the period before the Civil War into that War, the Court was unabashedly pro-slavery. After it was strongly anti-labor, at precisely the time that the greatest injustices against working people were being perpetrated. It then tried to torpedo FDR’s New Deal. Most of what we have seen with the Rehnquist and now Roberts Courts is to undo what was accomplished in the Court’s one brief liberal period. A reactionary Supreme Court favoring the haves over the have-nots is the norm in our history, not the exception.
Maybe Obama will pick Dawn Johnson!!
I have no hope of a really good appointment. Agree with a prior post that Sotomayor is a good jurist but hardly that progressive. Yes, it’s nice to get a Latina and a female up there, and I suspect she’ll do a much better job than Clarence Thomas (that said, I think I could do a better job than him).
But yeah: Obummer will choose someone very centrist or even right of center, and since the kabuki show has already commenced on this particular situation, we here at FDL know the rest. Bullshit baby bullshit.
Sigh. I hold out no hope of any real progressive getting on the SCOTUS ever again in my lifetime unless it’s some “stealth progressive” who ends up surprising everyone. Dream on….
I said centrist to right, meaning that there are centrists on the court and right wing ideologues. Sorry I wasn’t clear.
Huh, indeed. Or maybe half a huh. Wood could bring a much needed dose of economic populist to the court–her specialty is anti-trust law–which is why I suspect she won’t be the choice.
I wish people would stop describing Obama’s negotiating skills as poor (“pre-compromise”). Obama knows how to negotiate. He could not have gotten to be where he is without such knowledge and ability. But even if we assume, for the sake of argument, that Obama lacks the ability to negotiate, or is naive in his approach to negotiations, do you honestly think the same is true for everyone in his inner circle?
Obama starts his negotiations to the right of where liberals/progressives are comfortable because Obama himself is to the right of where liberals/progressives are comfortable (or at least, they should be). Obama knows perfectly well that the final result of the negotiations will be even further to the right of where he begins, and he’s apparently fine with that.
i.e., “pre-compromising”: it’s a feature, not a bug
From a gender standpoint, women are still grossly under-represented. So the first reaction will be to appoint another woman — and there are plenty of candidates. The National Association of Women Judges could be polled for suggestions, as could top law schools for top legal minds. It Obama wants to go outside the box, he could take a law school professor with a different specialty. My personal favorite in this category would be Martha Nussbaum. Otherwise, in the male department he should swing for the fence with somebody like Erwin Chemerinsky, or, and I know Firedogs may hate this suggestion, Richard Posner.
I knew you were going to hate that comment but “wishing harm on a fellow human being” doesn’t make it any more or less likely to occur.
The filibuster is going to happen, short of Obama picking Palin for the seat.
And the filibuster is a ridiculous tradition, exposed as such when you try to envision it being used in every day life.
If you are interested, you might get a laugh out of this short video satire that explored how it might look: http://bit.ly/9iegrc
So if Hitler was alive I wouldn’t be allowed to want Hitler dead? what about Stalin, would it be OK to want him dead?
The freedom of speech must include the freedom to hate or it is meaningless.
This cannot be a lefty organization if you intend to violate that.
Well, at least Sunstein’s name isn’t being bandied about.
Right, because true lefties are always allowed to give full vent to their bloodlust.
[Edited by Moderator: this site does not allow commenters to verbally attack other commenters.]
Heh… I think the Republics would filibuster even IF they got to pick some totally rightwing ideologue all by themselves with no input whatsoever from Dems.
Rail all we like against BHO and the Dems, it seems clear to me that the Republican kabuki show is to protest and vote against absolutely everything and anything this admin does. Didn’t the Dems, after all, incorporate nearly all of their demands in the Health Care leg, plus have it written by the Heritage foundation??
Yes, they will filibuster bc that is the trendy thing to do these days. Keeps the red meat coming out to the base, so that the base can feel utterly victimized by this rightwing POTUS and admin.
Sigh….
I am ignorant of who are the great legal minds who are qualified to be on the SCOTUS and are consistent liberals committed to privacy and civil rights and opposed to corporatism.
What I’d like to see is reporting that isn’t on who are the centrists that are being considered by the White House. What I’d like to see is reporting on who are those men and women I inquired about in my first paragraph. Then I’d like to see the Left make such a strong case for one of them that the White House feels pressure from the Left.
Can one of our FDL columnists get that research done and out to us?
It would be a shame if candidates like Napolitano or Granholm were crossed off the list right away.
Obama has said he valued candidates not from the traditional source of the bench and/or academia.
It might be nice to pick people primarily for their ability instead of ideology.
This is an incoherent complaint. Being a Supreme Court justice involves values. Talking about their ability as if it is unconnected to their ideology is nonsense. What do you mean? People disagree about what role the Supreme Court should play and how the Court should interpret the Constitution and statutes. Any choice will have a perspective on that. Pretending it is not true just means choosing blindly.
Well, I could say that choosing blindly, in regard to ideology, might be wisest.
I will say that a history demonstrating the ability to do the job well should be the primary consideration.
But what I did mean was simpler. Choosing justices primarily on political considerations leads to more of the same and more confirmation struggles that are less than honest or desirable, with outcomes also less than desirable.
I see. I am not sure who did suggest that political considerations should be the primary consideration. Many of the people being discussed have rather strong backgrounds.
I will say that it is incoherent to suggest that there is a standard of *ability to do the job* that is unconnected to a ideology or viewpoint.
There are a lot of people who have the background – once you limit it to those people, you still need to choose among them.
If you look at the post, it strongly suggests ideology as prime, talking about
and pretty much focuses on ideology.
And I continue to assert that there is a basic qualification, unconnected to ideology, involving reading comprehension and reasoning.
After narrowing the pool of “people who have the background”, you’re certainly correct that you have to choose from among dozens of exceptional people, but do you necessarily have to nominate with a focus on ideology or might the absence of an apparent ideological pattern be just as inviting?
Ok- you are reading the post uncharitably. Given the the post is discussing three potential candidates all who have the requisite background, it makes much more sense to me not to assume something not in evidence.
I continue to assert that once you narrow the field through more neutral criteria (is reading comprehension really something we can use to distinguish candidates for the Court rather than, say, applicants for college?) you still ought to address their views. They wield a good deal of power – its important to get a sense of how they will do that.
It would be impossible to have an *absence of an apparent ideological pattern* as, at least in the short term, as the Republican Party has consistently chosen an ideologues for the Court. Thus, there is no option for what Democrats can do that will lead to the result you seek. More to point, what purpose does pretending that ideology does not matter serve other than pulling a fast one on the public? Maybe I am missing something, but this seems to be nothing more than a call for elites to make decisions without interference from the public.