“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 regular active service as an Associate Justice,” Justice John Paul Stevens has written in a letter delivered today to President Obama.
Justice Stevens, the senior member of what is now identified as the liberal wing of the Supreme Court (although he came to the court as and in many senses remained an old-school moderate Republican), has decided to retire “effective the next day after the Court rises for the summer recess this year.”
What this means is that President Obama will have an opportunity to appoint a second justice, following his nomination last year of Justice Sonia Sotomayor. (He may get a third pick soon, as well, since there is much speculation about the prospect that another member of the court’s liberal wing, ailing 76-year-old Justice Ruth Bader Ginsberg, might soon step down.)
Just as Sotomayor’s selection did not change the ideological balance on the court, as she replaced liberal Justice David Souter, Obama’s choice to fill the Stevens seat will not tip the conservative-leaning high court to the left.
But it will almost certainly open up a brutal battle in an election year over not just the court but all the social, economic and balance of power issues that make the fights over court picks such high-profile struggles. Justice Stevens may have joined the court as a Republican appointee (he was nominated by President Gerald Ford in the aftermath of Watergate) but he served for the most part as a champion of civil liberties and an expansive interpretation of the Constitution.
Progressives will hope for a replacement who is not merely as liberal but as savvy in the ways of the court as was Justice Stevens. Conservatives will look for any opening to make a court that was moved well to the right by former President Bush’s appointments can be moved in an even more reactionary direction.
Obama, a lawyer and former constitutional law professor, has already outlined his values when it comes to court picks, saying when Suter left that he would look for a nominee with the “quality of empathy, of understanding and identifying with people’s hopes and struggles, as an essential ingredient for arriving as just decisions and outcomes.”
Most of the names that have been floated as potential nominees to success Justice Stevens fit that standard: Solicitor General Elena Kagan, Federal Judge Diane Wood, Homeland Security Secretary Janet Napolitano, Michigan Governor Jennifer Granholm, Minnesota Senator Amy Klobucher and former Georgia Supreme Court Chief Justice Leah Ward Sears. The name of Cass Sunstein, the head of the White House Office of Information and Regulatory Affairs, is also in play.