Justice Stevens to Retire: The Battle Begins

Liberals and conservatives draw up their game plans

When Supreme Court Justice John Paul Stevens began hinting he would retire this year, the contours of the coming Supreme Court melee quickly became clear. Now that Stevens has formally announced that he will retire this summer, the battle has begun. President Obama must select a replacement, who then faces what will surely be a tough nomination battle in the Senate. Who will he pick? How will the nominee do in the Senate? And, most importantly, how will the replacement perform on the bench?

• Long Fight Could Kill Obama's Legislative Agenda  Congress Matters' David Waldman explains, "With time running down for fin reg reform, immigration, etc., the better the odds for fast confirmation, the better. Also, the longer the nomination fight, the less time (and oxygen) there is for the Senate on any further legislation this year. The younger your nominee for SCOTUS, the longer the nomination fight / filibuster is likely to last."

• GOP Will Fight, But Will It Work?  National Journal's Stuart Taylor writes, "Many Republicans are spoiling for a fight to rev up their base for the coming elections. Some would depict any Obama nominee as an ultra-liberal eager to push the Court to the left." However, the floated nominee possibilities are all less liberal than Stevens, meaning they will in fact push the Court to the right. "It would be hard for Senate Republicans to justify or sustain a filibuster against any of these four, based on what's known about them."

• Pick a Politician  The Washington Post's Ezra Klein suggests, "Post-citizens united, I'd like to see a politician put on the Court. It doesn't need to be all lawyers and judges."

• All Options Too Liberal, Except Kagan  The National Review's Daniel Foster surveys the most commonly floated names, finding all but Solicitor General Elena Hagan to be too far to the left. "The first-female Solicitor General and probably first-runner-up for the Sotomayor seat, Kagan has a record of the kind of cagey jurisprudence that is ideal for a tough confirmation battle. ... My two cents: It's Kagan or somebody nobody is even talking about."

• Kagan Way Too Conservative  Salon's Glenn Greenwald urges against selecting Kagan, which he says would be "a harmful choice." Selecting her "would shift the Court substantially to the Right on a litany of key issues." He explores her "highly conservative" positions on "executive power, civil liberties and Terrorism." He says that the court's record of "placing at least some minimal constraints on executive power" under Stevens would be reversed if Kagan joined.

• What Liberals Want  The Washington Post's E.J. Dionne says they "very much want Obama to name someone who will be as aggressive as Stevens has been in standing up for their values. Obama’s political interests on this are mixed: On the one hand, Democrats seem less excited about this fall’s elections than Republicans, and a liberal pick would be a great pick-me-up for party loyalists. But with so much else that Obama is trying to get through Congress, he doesn’t want a Court fight to suck up all of Washington’s political energy."

• What Conservatives Want  The Atlantic's Chris Good explains, "The present conservative movement touts a very strict (in some cases, one could almost say fundamentalist) interpretation of the Constitution, not just on matters like abortion, but on states' rights. For tea partiers, especially, everything is about the Constitution, and a return to stripped-down, conservative adherence to it."

• Pick a Protestant!  The Huffington Post's Katie Halper facetiously asks why the American religious majority is such a minority on the court. "If Obama doesn't replace Stevens, the ONLY Protestant on bench, w Protestant SCOTUS justice, I'm moving to Canada....I want a wise Protestant male." She later responds to a reader who disputes her assertion that Protestants are "more reasonable" and "marginalized" by telling him to "use your reason and critical thinking to analyze my tone."