Post Stevens: Round Up the Usual Suspects!
Last month, Supreme Court Justice John Paul Stevens made news when he told The New Yorker's Jeffrey Toobin that he planned to retire during the current presidential term (meaning before January 2013) and that he would likely make a decision this month, in April, about exactly when he plans to leave. When other news outlets got essentially the same quotes from Stevens over the weekend, the old story cycled anew, buoyed by the lack of any real news during the long holiday weekend.
Forgive me for being sluggish about again joining the parlor game. If the Justice decides he wants out now -- and, really, as he nears age 90 can you blame him? -- we'll all have plenty of time to cull through all of the various lists of his potential successors. Indeed, having just undertaken this guessing game last summer in the run-up to the Sonia Sotomayor nomination and confirmation, it's fairly clear that President Obama's list will include few surprises. Wood. Kagan. Granholm. We've heard those names before. The president had plenty of solid candidates to choose from in 2009, and he'll have plenty to choose from again in 2010 if and when he needs to.
And if Justice Stevens decides he wants to go one more year-- you just never know -- all of this navel-gazing will have been for naught. Instead of predicting who'll get the nod this time, let me instead spend two minutes talking about the politics of the matter.
1. Sen. Arlen Specter (D-PA) should keep his mouth shut and not give the White House or Justice Stevens any unsolicited advice about the timing of the announcement. Sen. Specter's logic -- that a Supreme Court nomination is going to be harder this year than next year -- makes no sense if current polling holds true and Republicans pick up more seats in the Senate.
2. Sen. Patrick Leahy (D-VT), the chairman of the Senate Judiciary Committee, should at last call the bluff on the fillibuster. If the GOP wants Sen. Jeff Sessions (R-AL) or Sen. Tom Coburn (R-OK) to be the face of the party during the summer months in an election year, the Democrats should gleefully embrace the concept. This is especially true if, as expected, President Obama selects a moderate liberal female from among the many qualified candidates.
3. No matter who replaces Justice Stevens, and no matter when over the next few years, the Court's ideological makeup will remain unchanged. Trading Stevens for the next Obama pick will be the same as trading Justice David Souter for Justice Sotomayor or, from the Republican point of view, trading Chief Justice William Rehnquist for Chief Justice John G. Roberts, Jr. The math will still be the same -- 5-4 rulings with Justice Anthony Kennedy serving as the swing vote in most close cases. If the Democrats can get that through to most Americans, the politics of the next choice won't be as dramatic as the Republicans would like.
4. Democrats have had the opportunity to select only one justice -- Sotomayor -- in the past 16 years. This means their judicial bench (pun intended) is very deep. The president therefore has the luxury of selecting an academic, or a politician, or a seasoned jurist, without selecting the sort of liberal crusader that the GOP would love to see. In this sense, the conservatives already have won the day; it's conceivable that the newest justice would be slightly more moderate than his or her predecessor.
5. So long as a Democrat is replacing a liberal/moderate voice on the Court (Souter, Stevens, Ginsburg when the time comes), and so long as Republicans were replacing conservative voices on the Court (Roberts, Alito), the Senate's uneasy peace holds. This will not be the case when the Court's majority is on the line; when, say, President Obama has to replace Justice Scalia. When that historic moment comes, the fight is going to make the fights of 2009 and 2010 (and 2005 and 2006 for that matter) seem like beanbag.
In the meantime, relax. Let the poor, sweet old man make his announcement before you measure his office for a new desk.