Supreme Court Justice John Paul Stevens said Saturday he’ll soon decide whether to step down from his post as the liberal dean of the nation’s highest court.
In comments posted over the weekend on the website of the Washington Post, Stevens said he “will surely” retire while President Barack Obama is in the White House, calming fears of liberal groups that a future Republican president might replace Stevens with a decidedly conservative jurist.
“I do have to fish or cut bait, just for my own personal peace of mind and also in fairness to the process,” Stevens, 89, told the New York Times. “The president and the Senate need plenty of time to fill a vacancy.”
CNN legal analyst Jeffrey Toobin, who Stevens told last month for a profile in New Yorker magazine that he would resolve on his retirement in a month’s time, predicted the 35-year SCOTUs veteran’s retirement is imminent. Observers of the court expect Stevens to announce his intentions on or after April 28, marking the last argument of the court’s current session.
“We are just about at a month,” Toobin said. “I don’t think he meant that precisely to the day, but I think we will hear in the month of April that he is retiring.”
Stevens, the court’s oldest justice, became the object of intense speculation when it was revealed last Fall he hired only one law clerk for the upcoming session, instead of his customary four.
The Obama Administration’s short list to succeed Stevens is said to include U.S. Solicitor General Elena Kagan and federal appellate judges Diane Wood and Merrick Garland.
Both Kagan and Wood were among the leading prospects to replace David Souter, who retired from the court in June of 2009, as it was widely expected Obama would nominate a woman. While the two met with Obama for the post, the president ultimately nominated Sonia Sotomayor.
Kagan, who previously served as Dean of Harvard Law School, was only narrowly confirmed Solicitor General on a 61-31 vote. Kagan’s critics raised concern over her lack of judicial or appellate experience, which handicappers say exists as the greatest hurdle to her potential judgeship.
A memo circulated by conservatives before Obama announced the Sotomayor pick assailed Kagan’s lack of bench experience. “It is difficult to see how her experience fundraising for Harvard Law School qualifies her for a seat on the Nation’s high court,” the memo read. It also described her as “disturbingly out of the mainstream” on social issues like the controversial ban on gays and lesbians serving openly in the armed services.
But the dynamics of a Wood’s confirmation battle would be far different from a potential Kagan confirmation, as Judge Wood’s long and storied record on the issue of reproductive rights promises to serve as a lightening rod for Senate Republicans.
In 2000, Wood dissented against two state-level bans on partial birth abortions from Wisconsin and Illinois. The Supreme Court ultimately rejected her reasoning in 2007, approving a similar ban.
Most noxious to social conservatives, however, is Wood’s ruling that abortion lobbying group Planned Parenthood could use the “RICO” anti-mob law to sue pro-life protesters. The same conservative memo said Judge Wood “has betrayed a consistent hostility to religious litigants and religious interests.”
In his 13 years on the D.C. Court of Appeals, Judge Garland forged alliances on both sides of aisle and may yet be the most moderate nominee for which conservatives can hope. Garland is, as Ed Whelan describes, among a dying breed of liberal jurists — a member of the “once-dominant species of liberal proponents of judicial restraint.”
Other rumored Stevens replacements include Michigan Governor Jennifer Granholm, Homeland Security Secretary Janet Napolitano, Harvard Law professor Cass Sunstein, Stanford Law professor Pamela Karlan and former Georgia Supreme Court Chief Justice Leah Ward Sears. Kagan’s successor at Harvard Law, Martha Minnow, is also said to be under consideration by the White House.
Senator Jon Kyl, a Republican from Arizona, said Sunday on FOX News that it is unlikely his caucus would resort to a filibuster, save for extraordinary circumstances, if it disapproved the the president’s choice.
“I hope, however, [President Obama] does not nominate an overly ideological person,” Kyl said. “That will be the test and if he doesn’t nominate someone who is overly ideological, you may see Republicans voting against the nominee but I don’t see them engaging in a filibuster.”