Stevens Sets Up Court Fight

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APRIL 9, 2010
Stevens Sets Up Court Fight
Obama Expected to Seek Liberal Successor; Historic Change as Last Protestant Leaves
By LAURA MECKLER, JESS BRAVIN And PETER WALLSTEN

Justice John Paul Stevens said Friday that he would retire from the Supreme Court this summer, setting up an election-year confirmation battle that could stir an already volatile political atmosphere.

The resignation isn't expected to change the ideological balance on the Supreme Court, given Justice Stevens's position atop the liberal bloc. But it does give President Barack Obama a second chance to shape the high court, most likely a liberal who could be in a position to serve on the court for decades to come.

The announcement marks another step in the transformation of the American elite. Justice Stevens, who turns 90 later this month, is the only Protestant now on the court. Once entirely Protestant, the court now has six Catholics and two Jews. Among the top three candidates to succeed Justice Stevens, two are Jewish and one is Protestant.

A former Chicago lawyer who was nominated by a Republican president, Justice Stevens grew over the decades into his role as the most powerful force in the liberal bloc. Justice Stevens said he disclosed his decision Friday so his replacement could be confirmed in advance of the court's 2010-11 term that begins in the fall. Mr. Obama promised to move quickly in naming a successor, and Senate Democrats were weighing summer confirmation hearings. They were hoping to vote before the Senate departs for its August recess.

Justice Stevens's Letter to Obama The White House will be working from a short list of candidates created for the spot that went to Sonia Sotomayor, who was confirmed last summer. Three names were known to be on the short list, according to Democratic aides but they cautioned several others were also in the mix.

The three known contenders are Solicitor General Elena Kagan, former dean of Harvard Law School, and two federal appeals court judges, Diane Wood of the Seventh U.S. Circuit Court of Appeals in Chicago, and Merrick Garland of the U.S. Court of Appeals for the District of Columbia Circuit. Judge Garland and Ms. Kagan are Jewish; Judge Wood is Protestant.

Presidents often consider diversity in making choices for the court, though questions of experience, gender and race have been more prominent recently than religion.

While Supreme Court nomination fights often center on such social issues as access to abortion, the president may use the nomination to highlight his view that the court has swung too far in favor of corporate power.

The president criticized a key ruling by the Supreme Court's conservative majority in his State of the Union address in January, criticizing the high court for overturning decades of restrictions on corporate and union spending.

That prompted conservative Justice Samuel Alito, sitting in the audience, to mouth the words "Not true."

In televised remarks Friday, Mr. Obama seemed to refer to that 5-4 ruling, in which Justice Stevens wrote a 90-page dissent. The president said the next justice would be "someone who, like Justice Stevens, knows that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens."

After Justice Stevens The president said he would seek someone with "an independent mind, a record of excellence and integrity, a fierce dedication to the rule of law and a keen understanding of how the law affects the daily lives of the American people."

White House officials and their allies say any nominee is likely to draw opposition, given the partisan environment in Washington, as well as the belief that Mr. Obama will choose someone in agreement with his own judicial philosophy.

Still, some suggested the president wasn't looking for a controversial choice.

"They want to find someone who has some bipartisan support, if possible, but has a track record that is unimpeachable," said one Democrat who is in touch with the White House judicial team.

Sen. Charles Schumer (D., N.Y.) said he hoped Mr. Obama would choose a candidate who could be confirmed quickly with support from "both sides of the aisle."

Justice Stevens testified before Congress during his confirmation hearings in 1975 after his appointment by President Gerald Ford.

That prescription could point to Mr. Garland, a former prosecutor with a law-and-order reputation who has drawn positive reviews from some conservatives, or to Ms. Kagan, who gained notice for bringing conservatives onto the Harvard law faculty.

Ms. Kagan, at age 49, is also the youngest among these three contenders. The other two are in their late 50s.

Liberal groups signaled their desire for a justice who would fill Justice Stevens's shoes as the strategic leader of the court's left-leaning bloc.

Mr. Stevens was hailed Friday by abortion-rights supporters, gun control advocates, environmentalists and consumer-rights groups.

Many viewed him as the key player in persuading court moderates over the years to vote his way. Judge Wood is seen as the most liberal of the three candidates.

Unlike the rest of the court, who are all Ivy League graduates, she hails from the middle of the U.S., which would add geographic diversity to the court.

If Mr. Obama wants to break the mold and pick someone who isn't already a federal judge, that might point to Ms. Kagan, who is now the administration's solicitor general.

Tom Goldstein, a Washington lawyer and co-founder of a blog about the Supreme Court, called Ms. Kagan the "prohibitive front-runner."

Write to Laura Meckler at laura.meckler@wsj.com, Jess Bravin at jess.bravin@wsj.com and Peter Wallsten at peter.wallsten@wsj.com