Legal News

If Stevens Steps Down, Obama Likely to Move Quickly

By Ashby Jones

Supreme Court Justice John Paul Stevens hasn’t yet announced his retirement. But it seems the bettin’ money is that he will; and that it could be soon. The speculation picked up after a March 15 story by the New Yorker’s Jeff Toobin in which Stevens was quoted as saying he hadn’t yet made up his mind — but that he planned to “retire within the next three years.” (Click here for Toobin’s story; here for the LB post on the story.)

If Stevens does, in fact, decide to hang up the hat in upcoming weeks, the White House “appears ready to move quickly,” writes Tony Mauro in a story in the National Law Journal on Monday.

The candidate-vetting that happened after Justice David Souter announced his retirement (leading to the nomination of Sonia Sotomayor) appears to have given the Obama administration a head-start. Citing “knowledgeable sources,” Mauro says “the president is likely to work off the same dossiers, now being updated.” It’s a list, writes Mauro, that includes Solicitor General Elena Kagan, appeals court judges Diane Wood and Merrick Garland, and Homeland Security Secretary Janet Napolitano.

Indeed, those are the names we continue to hear bandied about most often. And which, if any, are frontrunning? We might not know until a nomination comes down.

“With this president, it is a profoundly personal decision,” said Obama’s first White House counsel Gregory Craig, now a partner at Skadden, to Mauro.

The court in all likelihood will, once Stevens’s replacement gets on board, maintain its political shape — with four liberals, four conservatives and one swing voter — Justice Anthony Kennedy. In the LAT on Monday, David Savage reports that a dynamic will likely shift, however. Justice Kennedy, when he sides with the liberals, will likely be the senior justice on that bloc, meaning he’ll have the power to assign the opinion or keep it for himself.

Former Clinton Solicitor General Walter Dellinger thinks this could tip Kennedy to the left more often than before. “He might honestly believe that he can best achieve a result he believes is legally optimal if he leans left and writes a cautious opinion himself,” Dellinger said.

And in those situations when Kennedy doesn’t take the mantle for the liberals? That role will fall to Justice Ruth Bader Ginsburg, writes Savage.

Full post as published by Law Blog - WSJ.com on March 22, 2010 (boomark / email).