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Who will Obama NOT nominate to replace Stevens?

Supreme Court Justice John Paul Stevens, the court’s oldest member and leader of its liberal bloc, announced on April 9, 2010 that he will retire in late June or early July, 2010. His announcement came 11 days before his 90th birthday.  Stevens, a Republican-nominated justice, emerged as a leader of the Supreme Court’s liberal wing over his 34-year tenure.

Although this will be the second time President Obama will fill a SCOTUS opening, it is hardly worthy of all the posturing and filibuster threats that have come from Republicans because the new Justice will not change much in the Supreme Court.  We can all safely assume that the President will nominate a reliable liberal.  Currently, there are 5 Republican-appointed, conservative Justices on the Supreme Court.  There are and 4 liberal Justices.  Therefore, replacing Justice Stevens (a liberal Justice) with another liberal Justice is not enough to shift the balance and have a major impact on the decisions which tend to go down party lines.

So who will the President nominate to fill the Stevens vacancy?  Four names are being floated around. They are Judge Merrick B. Garland, Judge Diane P. Wood, Solicitor General Elena Kagan and Sec. Janet Napolitano. Although these contenders have excellent backgrounds and stellar qualifications, based on his own words, it seems highly unlikely that the President will nominate any of them.

Let’s examine his words when he announced Stevens’ retirement. “I will move quickly to name a nominee,” President Obama said.  He promised to seek someone “with an independent mind; a record of excellence and integrity; fierce dedication to the rule of law . . . a keen understanding of how the law affects the daily lives of the American people . . . who knows that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.”

The President is looking for someone with a record of excellence and a fierce dedication to the rule of law.  This means that the President will likely select someone who has substantial judicial experience.  The President knows that a judge’s body of work is the best indicator of how that judge will rule in the future on important issues.

The President also said that the nominee will know the voice of “ordinary” citizens.  This indicates that the President probably will not nominate someone who has led a life of wealth, privilege or political connection.  Instead, by his words, the President seems to indicate that he will seek someone who has a family (maybe children), lives on ‘Main Street,’ knows the daily grind of going to work, picking up the kids after work, fixing dinner, and paying the bills at the kitchen table.  For these reasons, it seems unlikely that the President will nominate either General Elena Kagan or Janet Napolitano.

What else can we predict about the nominee?  Although it does not appear that the gender or race of the nominee are of paramount importance to the President, the age of the nominee probably is.  The President knows that this is an important piece of his legacy which will continue to impact the lives of Americans for many years after his Presidency ends.  Therefore, the person nominated will most probably be between the ages of 40 and 55. This will ensure approximately 30 to 40 years of service (health permitting).  For this reason, it’s unlikely that the President will nominate Judge Diane P. Wood (59 years old) or Judge Merrick B. Garland (57 years old).

Related post:

Term limits for Supreme Court Justices?


7 Responses

  1. This will be very interesting. Finding a Supreme Court Justice who still drives a Mini-van and picks up the kids will be fun.. This guy will stack the Justices with as many Democrats he can find during his tenure, and prepare to see the Constitution re-written.

    • Not quite sure what you mean by “re-written.”

      Maybe like it was after the Dred Scott decision? After all, it used to be Constitutional to own slaves; it no longer is.

      Or like when non-landowners got the right to vote. Or when women got the right to vote. Both those used to be illegal.

      Yep, it’s gonna be interesting, for sure! :-)

  2. No way would a person off the street get nominated because they probably have not been living their lives prepared for the scrutiny that comes with every other judge or elected official expects. So I am not one to believe the republicans are gonna let joe the plumber, or Shanequa the single mom, Chan the restaurant owner, Dante the businessman, or Mohammad the baker, will ever get a chance at the supreme court. NO way, the republicans are too commercial now.

  3. Justices should be nominated for a term of 25 years. This would solve three problems: 1) Baby justices writing poor opinions in their 40’s (e.g., Thomas, confirmed at 43, started his career poorly); 2) ancient justices over-representing outdated ideas (e.g., Justice McReynolds, an anti-semite born in a slave state, was still defending the old ways up to 1941); 3) ancient justices becoming incompetent–a;though I can offer no example, it is peculiar that there is no mechanism for removing a Justice for dementia–‘incompetence’ is not grounds for impeachment.

    • I agree. Not necessarily for the reasons you gave, but it just seems so cruel that Justice Stevens worked until 90 years old. This is not to minimize the wisdom that age brings, but what about going fishing, playing with the grandchildren, and just simply sleeping late and enjoying the fruit of your years and years of labor? On the other hand, why should anyone have a “lifetime” job? Presidents do not. Why should Supreme Court Justices? I think it removes the incentive to do good work. There’s got to be a better way! I agree that their terms need to be limited in some sort of way. Maybe I will do a post on that next.

      • As I understood it during my school and university years, the idea of lifetime appointments was to leave judges (and not just on the Supreme Court) free of political interference. That’s a goal with which I agree.

        However, there are good arguments against a 100% bulletproof lifetime appointment. Any justice can resign at will, of course, as Justice Stevens recently announced he will do in a matter, now, of mere weeks.

        I know precious little about *removing* a justice on the Supreme Court. It was startling to read Voice of Justice’s statement that incompetence isn’t grounds for impeachment; I hadn’t known that (and will do some research about on just what grounds a SCOTUS justice *can* be removed).

        I’ve long wondered if a middle path might be useful for us as a country. What I mean is for us not to appoint someone for life, end of story, but neither appoint him or her for a set term, without regard to length, as that puts that person in the position of having to “seek re-election,” even if the only voters are members of the Senate — but, instead, require a reconfirmation vote after a set period of years, a vote requiring a simple majority, presently 51, with the case of a tie being decided, as it currently is in all Senate ties, by the Vice-President in his role of presiding over the Senate. Or we could come at it the other way, still holding a reconfirmation hearing with an opportunity for the Senate to remove a justice — but with that approach, I think I’d prefer a super-majority vote of at least 60 senators (or 60% of however many Senators there are at the time), perhaps even a 2/3rd’s majority requirement to actually remove the justice under review.

        I also would like to see all Senate “tricks” barred during both confirmation and (should we institute them) reconfirmation hearings. No procedural tricks, no filibusters — in fact, not only no filibusters, but a set time period for each Senator to speak, UNLESS there is clear evidence something has come up demanding further investigation. (For example, if it surface’s a nominee or “re-nominee” is an active suspect in a felony, but doesn’t surface until almost the end of the hearings, well, sure, the Senators need to get to the bottom of any such allegation, even if it goes over the time limits. But still no filibustering.)

        I’m not a scholar at all about this stuff, so freely admit there may be holes a mile wide in my suggestion — but it’s only a *suggestion,* not a *prescription.*

      • All good ideas!

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