The White House appears ready to move quickly on a nominee for the U.S. Supreme Court should Justice John Paul Stevens decide to retire before the end of the term.
The vetting of the short list of candidates was already largely done last year when President Barack Obama picked Sonia Sotomayor to replace David Souter, and knowledgeable sources say the president is likely to work off the same dossiers, now being updated. The list includes Solicitor General Elena Kagan, appeals court judges Diane Wood and Merrick Garland, and Homeland Security Secretary Janet Napolitano.
Buzz about a possible retirement picked up again with the release last week of a widely read interview of Stevens by The New Yorker‘s Jeffrey Toobin. In the March 15 article, Stevens seemed to hedge on his plans, pledging only that “I will retire within the next three years” and saying that he’d be able to call in enough law clerks at the last minute this summer to continue in office another term. One theory circulating on Capitol Hill to explain his possible delay: Knowing that confirmation for his successor will be contentious, Stevens may want to give Congress time off from the angry divisiveness of the last year.
That said, the betting in Washington still leans toward a Stevens retirement this year, but so far there’s apparently been a minimum of lobbying for possible nominees with Obama. “With this president, it is a profoundly personal decision,” said Obama’s first White House counsel Gregory Craig, now partner at Skadden, Arps, Slate, Meagher & Flom. Craig declined to comment on other aspects of Obama’s selection process.
In many ways, the current situation resembles several nomination cycles of the recent past, said University of Connecticut political scientist David Yalof, who wrote Pursuit of Justices, a 1999 book about how administrations select Supreme Court nominees. Presidents Ronald Reagan, George H.W. Bush, and Bill Clinton, Yalof noted, all faced Supreme Court vacancies two years in a row, as Obama may now.
“Presidents and their Justice Depart­ment lawyers tend to rely heavily on all the research and legwork performed the previous year,” Yalof said. “In each case — Reagan in 1987, Bush 41 in 1991 and Clinton in 1994 — the individual chosen [Robert Bork, Clarence Thomas, and Stephen Breyer, respectively] received serious consideration the year before.” In particular, Yalof said, Bork had finished a close second to Antonin Scalia, who was nominated in 1986, so “Reagan administration lawyers did little or no work when Lewis Powell resigned in 1987,” Yalof said. “Bork was already slated for the vacancy.”
Though the short list is said to feature Kagan, Wood, Garland, and possibly Napolitano, other names still pop up in discussion, especially when it is noted that Stevens’ departure will deprive the Court of some feature it has now. Without Stevens, for example, the Court is composed of only East and West coasters; Midwesterners such as Michigan Gov. Jennifer Granholm or Sen. Amy Klobuchar (D-Minn.) could fill the void.
So if this is a lull period, shouldn’t there be a lot of stumping for or against these candidates within the White House or on Capitol Hill? Consider the front-runners, said Thomas Goldstein, partner at Akin Gump Strauss Hauer & Feld. “All three of the principal candidates — Kagan, Garland and Wood — are so careful and reserved that I think that, so far as I know, there hasn’t been lobbying, and I don’t think there will be in a significant way.”
Goldstein’s influential Feb. 23 SCOTUSblog post has framed discussion of the current state of play on Stevens’ potential successor. Its lengthy title, also aimed at knocking down rumors of a Ginsburg retirement, was, “On October 4, 2010, Elena Kagan Will Ask Her First Question As A Supreme Court Justice, And Justice Ginsburg will look across the bench at her new colleague and smile.”
Washington being Washington, even if lobbying is discouraged, meetings take place, well-connected people make well-placed comments, and advice is freely offered. The late New York Sen. Daniel Patrick Moynihan reportedly sealed the deal for Ginsburg’s nomination in 1993 with a strong pitch to Clinton during a flight they shared.
In the current setting, it can’t hurt, for example, that famed Harvard Law School professor Laurence Tribe, a fan of Kagan’s, is ensconced in the Justice Department as an adviser to Attorney General Eric Holder Jr. For Garland, it also can’t hurt that two of his former clerks, Danielle Gray and Jonathan Kravis, are attorneys in the White House counsel’s office. Gray plays a key role in screening judicial nominees.
Diane Wood has connections to Obama’s Chicago allies, and, to a lesser degree, Obama himself, having taught with him at the University of Chicago Law School.
THE RIGHT REPLACEMENT
Still, there seems to be less chatter about the identity of the Stevens replacement than usual in gossipy Washington. “I’m not hearing a damn thing,” said Nan Aron, who usually does. “It feels like Ginsburg followed by Breyer all over again.” Aron is president of the liberal Alliance for Justice.
Some conservatives speculate that liberals will be unenthusiastic about the presumed front-runner, Elena Kagan. M. Edward Whelan III, a former Scalia clerk who heads the Ethics and Public Policy Center, said Kagan’s fence-mending leadership of Harvard Law School has garnered for her “significant support among conservatives,” and she has been “very guarded” in the stances she has taken throughout her career.
But Aron, asked if she would oppose Kagan, said no, adding, “This year we are going to decide who we are for, not who we are against.”
Aron, a leading strategist in confirmation battles since Bork, did say that, “knowing this is the Stevens seat, we hope President Obama would appoint a very strong defender of individual rights, a strategic leader. This is much more important than Souter’s seat.” Aron also argued that “no matter who he puts up, Republicans will obstruct. So he should just appoint someone he really wants to be a fitting successor to Justice Stevens.”
The White House’s willingness to engage Chief Justice John Roberts Jr. and the Court in the State of the Union address and afterwards on the Citizens United v. Federal Election Commission ruling may also affect Obama’s pick.
O’Melveny & Myers appellate chief Walter Dellinger, the former acting solicitor general in the Clinton administration, said, “The decision [in Citizens United] to equate fully corporations and persons makes the ‘just an umpire’ model of judging seem somewhat less appealing.” Dellinger was referring to Roberts’ description at his 2005 confirmation hearing of the role of judges as like that of baseball umpires. “Life experience and judgment and understanding of how law affects people all look a lot more valuable in a judge after Citizens United,” he added.
The word “empathy” will still be taboo as it was for Sotomayor last year, Dellinger said, but “The American public might now better understand that there is something to be said for a judge who senses that corporations do not have hearts and souls, do not revere grandparents, don’t worry about their children, and do not have dreams for the future in the way that people do.”
Tony Mauro can be contacted at email@example.com.