Announcement of Nominee to Replace US Supreme Court Justice Stevens Appears Imminent

May 7, 2010

It appears that President Obama is very close to nominating a replacement for Justice Stevens of the United States Supreme Court. The ninety-year-old Justice will end his career at the finish of the current court term, this July, and there is speculation that a nominee will be announced this coming week. As expected, the route to choosing the next Justice remains highly politicized; Republicans and Democrats alike seek to influence the process for an outcome aligned with their respective ideological preferences.

In simple terms, on the scale of liberal to conservative, left to right, Justice Stevens—despite being nominated by Republican President Gerald Ford—is considered reliably liberal. He has voted in favour of affirmative action and against the death penalty, and is both pro-choice and pro-gun-control. Moreover, he recently dissented in the decision of Citizens United 130 S.Ct. 876 (2010) in which the majority, in part, removed "all restraints on what corporations may spend on election advertising." In the US political paradigm, Justice Steven’s positions on such core issues are routinely cited as imperfect but key characteristics of a liberal or Democrat.

The nominations of Chief Justice John Roberts and Justice Samuel Alito, by former President George W. Bush, decidedly moved the court further to the right. While it is next to an impossibility that President Obama would pick a conservative, a moderate nominee is certainly not out of the question. Indeed, the President may go with a “safe” pick in order to minimize the chances of an extended and complicated nomination process. This begs the question: which of the frontrunners is “safe”?

US Solicitor General Elena Kagan, Judge Sidney Thomas, Judge Merrick Garland and Judge Diane Wood have all been interviewed by the President within recent weeks. Kagan is a former Dean of Harvard Law School, a Harvard Law graduate, and the current Solicitor General of the United States—the first female to hold this position. As the government’s representative in front of the US Supreme Court, and the only non-judge of the leading candidates, she is uniquely positioned as a potential nominee. Some see her as the presumed favorite. According to Jeffrey Toobin she is an appealing choice:

She has a reputation as a consensus builder. She is someone who brought vigorously fighting factions at Harvard together. She worked in the Clinton administration and had good relationships with Republicans in Congress at the time. She has never been a judge, which I think is a point in her favor for Obama. There are all former judges on the court now, and I think Obama wants people of more different backgrounds. So I think she's the likely choice. 

Despite her reputation as a consensus builder, Kagan received modest support from Republicans for her confirmation as Solicitor General. In part, conservatives pointed out that she had rejected a mandate that military recruiters have access to federally funded university campuses. Her stated opposition to the military’s “Don’t Ask Don’t Tell” policy played a role in that decision. Ultimately, because she did not serve on the bench, it is difficult to isolate her position on the key ideological issues. As a final point, the National Review wonders how many cases from which the former Solicitor General would have to recuse herself once appointed.

Judge Merrick Garland, of the Federal Appeals Court in Washington, is viewed as a moderate Democrat and the least likely to face resistance in the nomination and appointment process. A Harvard Law graduate and former clerk for Justice William J. Brennen Jr., Judge Garland has decided in favour of the rights of Guantánamo detainees and has expressed appreciation for the works of the late Justice Harry Blackmun, the author of Roe v. Wade, 410 U.S. 113 (1973).

The most liberal of the contenders is Judge Diane Wood—she clerked for Justice Harry Blackmun a few years prior to the decision in Roe v. Wade. Judge Wood is a graduate of the University of Texas Law School. She taught law at Georgetown University, and with President Obama at the University of Chicago. She was nominated to the bench by Bill Clinton and currently sits on the United States Court of Appeals for the Seventh Circuit. Her career has been marked by numerous pro-choice decisions, including Hope Clinic vs. Ryan, 195 F.3d 857 (7th Cir. 1999) in which she dissented from the majority ruling upholding state bans on partial-birth abortion. This alone is sufficient to garner significant opposition from Republicans and moderate Democrats alike.

Finally, there is federal Judge Sidney Thomas of Montana, who was recently interviewed by the President. He is unique for not being an Ivy League graduate having earned a law degree from the University of Montana. Judge Thomas currently sits on the US Court of Appeals for the Ninth Circuit, to which he was appointed by Bill Clinton. Based in San Francisco, the court has a liberal reputation. According to the Scotus Blog, in 2009 the US Supreme Court reversed eighty percent of Ninth Circuit decisions (pdf link).

If all the current conjecture is to be believed, signs point to Solicitor General Elena Kagan as the “safe” choice to replace Justice Stevens. It has been reported that the President would like to nominate a female candidate. Currently, there are only two females on the US Supreme Court, out of nine Justices, and Kagan may become the third.