John Paul Stevens Announces Forthcoming Retirement

by Jonathan Singer, Fri Apr 09, 2010 at 11:23:06 AM EDT

Not a complete surprise, but somehow a bit surprising nonetheless. Here's The Times:

Associate Justice John Paul Stevens, the leader of the liberals on the Supreme Court, announced on Friday that he will retire at the end of this term, setting up a confirmation battle over his replacement that could dominate the political scene this summer.
In a brief letter to President Obama, whom he addressed as “my dear Mr. President,” Justice Stevens said he was announcing his retirement now because he had “concluded that it would be in the best interests of the Court to have my successor appointed and confirmed well in advance of the commencement of the Court’s next term” in October.

I would assume that Barack Obama has already made his selection for this seat -- or he's close to a final decision -- having more than a year to contemplate the possibility of a Stevens retirement. Also despite the fact that the Republicans hold a sufficiently sizable minority in the Senate to block an Obama nominee should they choose to filibuster, it is exceedingly difficult to imagine this level of obstruction, particularly given the bloc of Lugar/Snowe/Collins/Voinovich/Gregg/Hatch/Bond who tend to be deferential to Presidents -- even ones hailing from the Democratic Party -- on Supreme Court nominations. This isn't to say that there isn't going to be a fight, because the Republicans fight everything these days. But I would expect a fairly uneventful confirmation process, one with minor blowups that are treated like major ones, but one that finds a nominee being confirmed relatively quickly and easily.

Tags: Supreme Court, SCOTUS, John Paul Stevens (all tags)

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Should be good

Its the one thing that Obama most definitely got right in 2009; 2010 allows him to double the good deed.

by Jerome Armstrong 2010-04-09 11:56AM | 0 recs

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Choices...

I think the best choice from the "top 3" list that's been floating around is Elena Kagan. They just confirmed her for Solicitor General, so they'd be hard pressed to filibuster her now. She's likely have a generally smooth confirmation, just as Sotomayor did. I also like the idea of adding another woman to the Court.

But if I can pick my ultimate choice? Goodwin Liu. The guy is brilliant, known to be able to sway opinions from all sides, and personable. He obviously has the legal chops to be an amazing SC Justice. Also, it would be fantastic payback to the GOP for stalling his 9th circut nomination. Also, he would be the first Asian-American SC Justice (I think). Also, he's 39 years old, meaning he'd probably be able to sit on the bench for 40+ years.

He really seems like the best choice. But only in my dreams would this White House take on that fight.

by The BBQ Chicken Madness 2010-04-09 11:59AM | 0 recs

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RE: Choices...

I think Kagan too.

As for Lui, let's get him to the Appeals Court first. He's quite young, plenty of time for the SC down the road.

by vecky 2010-04-09 02:12PM | 0 recs

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RE: Choices...

I don't know much about Kagan. I'm worried about how everybody keeps talking about how "conservative" she is.

http://www.huffingtonpost.com/2010/04/09/elena-kagan-emerging-as-s_n_532319.html

"Elena Kagan, President Obama's solicitor general, is rapidly emerging as a frontrunner to replace retiring Chief Associate Justice John Paul Stevens. Kagan is widely praised as an accomplished and intelligent attorney, but is far more conservative than Stevens and could shift the political dynamic of the high court.

Conservatives are responding favorably to the potential of a Justice Elena Kagan while liberals worry that, by choosing her, the administration would miss the opportunity to elevate a genuine progressive....

The praise from conservatives may sound damning to those who worry that the court is too close to corporate interests and too willing to accommodate the radical expansion of executive power. Kagan has been criticized by civil libertarians for her expansive stance on detainee policy.

Glenn Greenwald wrote Friday that "replacing Stevens with Kagan... would shift the Court substantially to the Right on a litany of key issues (at least as much as the shift accomplished by George Bush's selection of the right-wing ideologue Sam Alito to replace the more moderate Sandra Day O'Connor)."

The 5-4 majority that has attempted to keep the executive branch in check could be in jeopardy. "Over the past decade, the Court has issued numerous 5-4 decisions which placed at least some minimal constraints on executive power. Stevens was not merely in the majority in those cases, but was the intellectual leader justifying those limits," Greenwald wrote."

by jeopardy 2010-04-09 11:40PM | 0 recs

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RE: Choices...

It's just political posturing. While one can guess, one can't with any certainty guarantee how a justice will vote once appointed to the bench (see Stevens for example). So many potential nominees tack 'moderate' and then settle more firmly into their ideological niche once confirmed. It's all very much wink wink, nod nod.

Harold Koh sounds like another good choice, though his support for "transnational jurisprudence" means there will certainly be a contenious hearing, a filibuster and tons of bad op-eds, even though that is exactly the view Stevens himself holds.

Either way I'm not worried about who the nominee will be.

by vecky 2010-04-10 12:30AM | 0 recs

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RE: Choices...

Forgive me for not being reassured by the possibility that she could be different when she becomes a justice on the Court.

BTW, that argument could be made for <ANYBODY> so I don't see how that should even be a part of the decision at all.

by jeopardy 2010-04-10 11:08AM | 0 recs

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RE: Choices...

Your right, the argument is made for everybody because everybody does it. Realizing that what goes on in political hearings is largely theater has to be part of the decision, especially if your going to use statements made during the hearing as either pro or con.

by vecky 2010-04-10 12:54PM | 0 recs

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RE: Choices...

The problem people have with her isn't statements during hearing that haven't gone on yet, but rather her support for immoral and dangerous detainment, torture, and executive priviledge policies, if I understand correctly.

by jeopardy 2010-04-10 01:13PM | 0 recs

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RE: Choices...

Which as I understand it happened during her previous hearing, for the job she currently holds. In that case she said exactly what her prospective employer (the DoJ) wanted her to say. It's just politics.

by vecky 2010-04-10 02:23PM | 0 recs

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RE: Choices...

Ah, ok, I see your point now.

Yes, we can't trust that just becasue she took pretty hard dictatorship-loving stances during the last confirmation hearings, we can't know if she REALLY favors dictatorships.

That said, I still think it would be better to go for somebody who hasn't taken that stance recently.

Also, do we have any info that after she got that job, she change her stances back to the correct views?

by jeopardy 2010-04-10 04:33PM | 0 recs

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RE: Choices...

Correct views? These are the views of the Obama DoJ, and whatever happens it's hardly likely that Obama will appoint someone to the court that would negate his own DoJ. Kagan may have expressed these views on record, but whoever is nominated will almost certainly have been asked privately.

That ofcourse only works for the nomination-hearing-confirmation game. After that it's a free-for-all. It's too early to judge but it does seem that Sotomayor is trending slightly more liberal than her rep.

On indefinite detention, the supremes seem all over the place and there doesn't seem to have been a particular ruling on the issue. The closest was Al-Marri vs. Spagone, but that was dismissed as the Obama admin brought criminal charges against him and transferred him from military to federal jurisdiction. He was subsequently tried and sentenced (yay!). We'll know more when the supremes rule on Comstock v US, probably in May-June.

by vecky 2010-04-10 06:58PM | 0 recs

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RE: Choices...

yes, "correct" views. I usually hate to speak in terms of absolutes like this, but holding people without charges brought against them or them having opportunity to prove their innocence, especially in the context of past torture in some of those facilities, is flat-out immoral and an affront to American ideals and basic human rights.

And again, while Kagan may have just been lying about how she feels about it, the nomination should go to somebody who hasn't taken a strong stance against basic human rights.

by jeopardy 2010-04-10 07:20PM | 0 recs

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RE: Choices...

Well, i'll give you an example: Some people have mentioned Hillary Clinton, and I will note that Hillary clearly supports the Obama DoJ and national sec. decisions (how can she not, publicly). Yet were she on the bench, it's not difficult to imagine which side of the civil-liberties issue she would end up on.

by vecky 2010-04-10 07:48PM | 0 recs

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RE: Choices...

Again, that in no way means it is a good idea to nominate somebody who has just taken that stance publically, even if they were likely lying.

How about we find somebody who has taken the correct stance on it instead?

by jeopardy 2010-04-10 08:04PM | 0 recs

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RE: Choices...

It's not a question of lying, it's who you are working for. An employee of the DoJ can harrdly go against the very same admin who is appointing her.

by vecky 2010-04-10 08:38PM | 0 recs

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RE: Choices...

"I was only following orders..."

Do you excuse John Yoo for his shoddy legal positions, just because he was an employee who "can hardly go against" his employer?

by jeopardy 2010-04-11 11:16AM | 0 recs

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RE: Choices...

I don't expect John Yoo was the one in charge, rather the policy emanated from the top.

But in this context, where has Kagan or Holder enumerated "shoddy legal positions"? Have you watched or read the hearing you supposedly object to?

by vecky 2010-04-11 11:33AM | 0 recs

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RE: Choices...

Her agreeing that indefinite detainment is ok in the "war on terror"

The fact that she was saying "yes" to quetions instead of offering her opinion unasked doesn't mean it is ok.

by jeopardy 2010-04-11 11:57AM | 0 recs

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RE: Choices...

Maybe you missed the bit where detainment of pows was only acceptable under independent judicial review, not via diktat of the executive branch.

You still haven't answered what you would have said differently. They were a series of gotcha questions and she handled them well. IMO the entire notion that Kagan, who is a strong defender of individual liberties and took flak for standing up for LGBT rights is some sort of torture-loving-conservative is stupid IMO.

by vecky 2010-04-11 01:39PM | 0 recs

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RE: Choices...

What would I have said different?

How about "THe War Powers under the COnstitution were meant to be temporary. The powers were never meant to be invoked where there are no governments declarying war; the powers don't apply where there's nobody who can surrender to end a war. To invoke war powers so long as a particular tactic exists, like "terrorism", is to make the war powers permanent and is to demolish the established checks on the president's power"

How about that?

Vecky, let me ask you this though. Which of these do you disagree with?

1) saying that the president permanent (so long as there is such a thing as "terrorism") war powers is shoddy constitutional analysis

2) answering "yes" to those questions by Grahm is an affirmative answer to the questions

3) It is not ok for a legal scholar to support indefinite detainments just because you are seeking a job which an organization that supports it

4) it's better to nominate a person who has taken stands in favor of human rights when it comes to presidential powers, or even no stand at all, than to nominate somebody who affirmatively took the constitutionally dubious and anti-freedom position recently.

by jeopardy 2010-04-11 02:52PM | 0 recs

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RE: Choices...

War powers have already been invoked. What are US troops doing over in A'stan or Iraq? They're not peace-keeping.

1) Congress can revoke the war powers whenever it sees fit.

2) There is no other answer that I am aware of. As SG she is not making the law, merely following it. That's what we want right?

3) That is not what occurred and if you bothered to read the exchange you would know it.

4) Kagan has taken stands in favor of human rights and her testimony in front of the Senate confirmed her stance. She supports both the Geneva convention and judicial review. There were no "anti-freedom" positions that I am aware of.

by vecky 2010-04-11 03:39PM | 0 recs

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RE: Choices...

Btw, you can watch the hearing for Kagan here:

http://www.c-spanvideo.org/program/283954-1&start=5636

Most of the talking was done by Graham, but what was not the 'correct stance' in your view?

by vecky 2010-04-10 09:24PM | 0 recs

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RE: Choices...

This is what happens with indefinite detention:

"George W. Bush, Dick Cheney and Donald Rumsfeld covered up that hundreds of innocent men were sent to the Guantánamo Bay prison camp because they feared that releasing them would harm the push for war in Iraq and the broader War on Terror, according to a new document obtained by The Times.

The accusations were made by Lawrence Wilkerson, a top aide to Colin Powell, the former Republican Secretary of State, in a signed declaration to support a lawsuit filed by a Guantánamo detainee. It is the first time that such allegations have been made by a senior member of the Bush Administration.

Colonel Wilkerson, who was General Powell’s chief of staff when he ran the State Department, was most critical of Mr Cheney and Mr Rumsfeld. He claimed that the former Vice-President and Defence Secretary knew that the majority of the initial 742 detainees sent to Guantánamo in 2002 were innocent but believed that it was “politically impossible to release them”.

http://www.timesonline.co.uk/tol/news/world/us_and_americas/article7092435.ece

by jeopardy 2010-04-10 07:25PM | 0 recs

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RE: Choices...

You don't have to remind me of the stupidity that reigned during the Bush admin.

by vecky 2010-04-10 08:00PM | 0 recs

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RE: Choices...

it's not just "stupidity". It's the corrupting nature of the government having the power to hold people without charges.

Our Founding Fathers knew this. Obama seemed to know it before becoming president.

by jeopardy 2010-04-10 08:06PM | 0 recs

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RE: Choices...

Well, the Founding Fathers granted specific exemptions from constitutional protections to a certain group of people who just happened to be black.

And let's be clear exactly what Kagan said, she was responding the a series of leading questions from Graham. It was all political theatre having no actual impact on detainee policies.

Sens. Dianne Feinstein (D-Calif.) and Lindsey Graham (R-S.C.) both raised the issue Tuesday. Feinstein called it "a fundamental question as we consider the end planning for detainees as Guantanamo is closed."
Graham, a former Air Force lawyer, stressed the stark difference between criminal law and the law of war. He and Kagan agreed that under criminal law, no person can be held indefinitely without a trial.
"Do you believe we are at war?" Graham asked.
"I do, Senator," Kagan replied.
Graham cited the example of someone who is not carrying a gun or fighting on a battlefield. "If our intelligence agencies should capture someone in the Philippines that is suspected of financing Al Qaeda worldwide, would you consider that person part of the battlefield?" he asked. He added that he had asked the same question of Holder, who replied that he agreed that person was on the battlefield.
"Do you agree with that?" the senator said.
"I do," Kagan replied.
Graham said that under the law of war, the government can say, "If you're part of the enemy force, there is no requirement to let them go back to the war and kill our troops. Do you agree that makes sense?"
Kagan replied, "I think it makes sense, and I think you're correct that that is the law."
"So America needs to get ready for this proposition that some people are going to be detained as enemy combatants, not criminals," Graham concluded.
http://articles.latimes.com/2009/feb/11/nation/na-solicitor-general11

What was Kagan going to say? "No, we are not at war?" Let's not read more into this exchange than what is needed.

by vecky 2010-04-10 09:11PM | 0 recs

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I'm putting 1+1 together

and saying it's Larry Summers.

by John DE 2010-04-09 03:54PM | 0 recs

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RE: I'm putting 1+1 together

Are you familiar with modular arithmetic?

Sometimes 1 + 1 = 0.

by RickD 2010-04-09 04:29PM | 0 recs

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This is a liberal seat

Since this is William O Douglas seat that Stevens himself who was a liberal should be placed with one, Diane Wood. Each of the last 3 president picked a concensus choice and a base pick. Clinton Breyer and Ginnsberg, H Bush Souter and Thomas and W. Roberts and Stevens. Wood who is very liberal seems to be a better base pick than Kagen who already has a job as Solicitor General.

by olawakandi 2010-04-10 09:58AM | 0 recs

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RE: John Paul Stevens Announces Forthcoming Retirement

Two things to remember about Stevens' replacement:

1) the right will think they're too radical.

2) The left will be dissatisfied with womever gets the nod 10 minutes after the name is leaked.

oh, and here's a third:

3) It won't be worth losing some mosquito abatement trustee's seat to the Republicans in the eyes of Kent (his position will recceive mega-recs along with the endorsements of desmoinesdem, Jerome Armstrong, Jonathan Singer and Nate Silver).

by spirowasright 2010-04-10 01:11PM | 0 recs

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SUPREME COURT NOMINATION

SUPREME COURT NOMINATION

The Republicans will probably fight against any nominee except maybe Captain Sully

homer www.altara.blogspot.com

by altara 2010-04-11 12:18PM | 0 recs