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Supreme Court Scramble! Both Sides Prepping For Possible Stevens Retirement


Eight of the nine U.S. Supreme Court Justices

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Call it the Stevens Supreme Court Scramble -- both sides are preparing for the next confirmation battle royale, should Justice John Paul Stevens' strong hints in recent days that he'll soon retire pan out.

Law professors and congressional staffers who have handled confirmations tell me that Solicitor General Elena Kagan has a good chance of making the top of President Obama's short list again, as she did when Sonia Sotomayor got the nod last year. Obama was widely impressed with her during his round of selection meetings, and she has already been thoroughly vetted. She also has the advantage of having been confirmed to her current post last year with seven Republican votes.

"It would be hard for Republicans to explain how they voted to confirm her for solicitor general without hesitation but she is now unacceptable," UC Berkeley law professor Daniel Farber, who clerked for Stevens early in his career, told me in an interview.

Kagan was dean of Harvard Law School before joining the administration, and also worked in the Clinton White House. She was confirmed by the Senate on a 61-31 vote in March 2009, drawing criticism from Republicans for not allowing military recruiters on the Harvard campus. But Republicans blocked her 1999 nomination to the D.C. Circuit Court of Appeals.

If Stevens, 89, is indeed the next retirement (remember that Ruth Bader Ginsburg has been the subject of retirement rumors for a long time), Obama is likely to have more political flexibility in nominating a male justice. President Bush replaced Sandra Day O'Connor with Sam Alito, reducing the number of women on the court to one. Other names floating around out there are D.C. Circuit Appeals Court Judge Merrick Garland, who oversaw the prosecution of Timothy McVeigh for the Oklahoma City bombing. Seventh Circuit Court of Appeals Judge Diane Wood was another top finalist, along with Obama's Homeland Security Secretary Janet Napolitano, the former governor of Arizona.

But the name game widens from there, with Secretary of State Hillary Clinton or even Vice President Joe Biden bandied about on the Hill. Former Virginia Governor and now DNC Chairman Tim Kaine made it no secret he was interested in one day serving on the bench, but is a longshot choice given his current political job.

Another consideration for Obama is someone with life experiences not represented on the court. For instance, Stevens is the only justice with military experience. But serving as a chief executive also appealed to Obama the last go around, which is why Napolitano and Michigan Gov. Jennifer Granholm (D) remain possibilities.

Farber would like Pamela Karlan of Stanford, whose name arose on a long list last year. She is "outspokenly liberal" and because she is outspoken, "she would clearly get a big fight," Farber said. Progressives like Karlan, who was briefly considered by the White House last spring. Slate's Dahlia Lithwick suggested recently that if Karlan doesn't appear, it means Obama isn't seriously considering a liberal justice to fill the next vacancy.

A nomination fight now would come at an interesting time, right after the protracted and contentious health care debate, at a high water mark of Senate GOP obstructionism, and with 59 Senate Democrats instead of the 60 of a year ago, not to mention the midterm Congressional elections.

Will Obama go with a safer centrist choice and avoid a protracted fight with elections on the horizon? Or will he try to maintain the current balance of the court by nominating a jurist as liberal as Stevens became late in his career? And if he doesn't go the progressive route, will his own party get frustrated right when he needs them to turn out this fall to help keep Democrats in power?

From the right you have Judicial Crisis Network (JCN), formerly Judicial Confirmation Network, joining a host of groups aiming to paint any nominee as a judicial activist and extreme.

"All of the factors point to an opening on the court in the very near term, and we're prepping for anything being possible," Gary Marx, executive director at JCN, told me in an interview. Marx thinks it might be a longshot but could see Obama nominating Clinton or even Biden to the high court, since it has historically been easier to confirm former senators to such positions.

Last year Justice David Souter announced he would retire on May 1, and Obama nominated Sotomayor on May 26. The confirmation fight played out over the summer and she was seated with plenty of time to help get settled and to participate in the choosing of the court's fall caseload. Judiciary sources told me they'd like to see Stevens and the president operate on the same time frame.

The White House is mum, saying only that stories about lists -- short or long -- are premature.

Comments (89) | Join the Conversation!

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April 7, 2010 8:50 AM   

One name I'd like to see added to the mix -- a longshot, obviously, but potentially a brilliant choice -- is Maryland State Senator Jamie Raskin, who is also a nationally-respected professor of constitutional law at American University and who has been outspoken in his criticism of Citizens' United. He has a sharp and creative mind, combined with a personable, outgoing nature and his remarkable success in the Maryland General Assembly -- as a freshman -- suggests an impressive ability to engage and persuade colleagues. Actually, he reminds me a lot of Paul Wellstone, albeit as a constitutional law expert.

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April 7, 2010 1:08 PM    in reply to Moose49

I became a fan of Raskin first because of his book on the 2000 election and then again when I read that he said something like "Elected officials don't swear on the Constitution to support the Bible; they swear on the Bible to support the Constitution."

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April 7, 2010 3:46 PM    in reply to navamske

He has a brilliant mind, yet a totally disarming manner.

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April 9, 2010 12:51 PM    in reply to Moose49

Wow, I've been out of state for too long. This sounds like a guy we should like having in Congress, but given the way that body's been behaving lately, he might actually want to...you know...accomplish something with his life.

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April 9, 2010 3:04 PM    in reply to Moose49

Raskin was my professor of Con Law in law school, and while I love him, I doubt if he can ever be confirmed. The old snitch Orrin Hatch and that old hag McCain will go on like Marge Simpson's two ugly sisters if that happened.

I suspect it will be Dianne Wood. Why? She's from Texas AND she didn't graduate from one of the Ivy law schools, Univ of Chicago or Stanford. Instead, she graduated from the Univ of TX and I bet Obama will nominate her because of that diversity she brings.

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April 7, 2010 9:04 AM   

"It would be hard for Republicans to explain how they voted to confirm her for solicitor general without hesitation but she is now unacceptable,"

-She don't know them very well, do she?

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April 7, 2010 9:15 AM    in reply to Viva!America!

last i heard, daniel farber is a he. but you are correct. what a terribly stupid thing to say. as if any republican would find it difficult to differentiate between the jobs of solicitor general and supreme court justice.

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April 7, 2010 1:06 PM    in reply to fkaZk0sm0

...or to take the exact opposite position on something from one moment to the next.

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April 7, 2010 1:10 PM    in reply to commie atheist

"It would be hard for Republicans to explain, using facts and logic, how they voted to confirm her for solicitor general without hesitation but she is now unacceptable, but it would be easy for them to explain if they made up a bunch of silly crap which was repeated 1000 times a day by the liberal media and believed only by the insane."

There, that's fixed now.

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April 7, 2010 1:12 PM    in reply to fkaZk0sm0

...or to take the exact opposite position on something from one moment to the next.

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April 7, 2010 9:16 AM   

Why not a minority female? Or maybe an LGBT individual? Another black male?

Talk about putting the GOP in a rough spot--

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April 7, 2010 9:26 AM    in reply to mvilla

I'd love to see Pamela Karlan. But as a dedicated progressive lesbian feminist (to say nothing of her immense qualifications as a professor of law at Stanford and former clerk to Justice Harry Blackmun), the Repubs would be screaming about how she wants to mandate abortions and castrate every straight white man.

Don't get me wrong, it would be amusing to watch. But it would also be one hell of a political fight.

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April 7, 2010 11:09 AM    in reply to EnnuiDivine

And as we've seen, Obama hasn't got any fight in him, especially not for anything or anyone smelling even slightly of the left.

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April 7, 2010 11:12 AM    in reply to EnnuiDivine

And one at a time when President Obama can ill afford it. That would be a choice better reserved for a vacancy during a second Obama term (if there is one), when he is term-limited and doesn't have to worry about giving the other side campaign ad material.

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JHM

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April 7, 2010 9:18 AM   

In response to the idea that a "big fight" might be something to avoid in choosing a nominee, the patent fact that GOP opposition is utterly devoid of principle (unless implacable opposition is a principle) needs to be put front and center.

There is no nominee that will avoid this "big fight." No calculation that assumes that previous statements or votes by GOPers will not be jettisoned in the pursuit of blind partisan obstruction is valid.

So if we are to get a fight no matter what, why not get something worth the effort? someone as uncompromising as her (I hope) predecessor.

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April 7, 2010 9:28 AM    in reply to JHM

and the fact is that hard-right ideologues can only be balanced with solid lefties. but you can bet that obama will only ever tap a moderate liberal for the court, thus completing bush's effort to yank the court (further) to the right.

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April 7, 2010 9:39 AM    in reply to fkaZk0sm0

unless Scalia or Kennedy retires in a possible second Obama term--the dream of progressives everywhere.

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April 7, 2010 9:58 AM    in reply to human

Scalia is a partisan hack, he would never retire under a Dem.

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April 7, 2010 10:11 AM    in reply to _jonny_5_

They are going to have to die for that to happen.....

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April 7, 2010 2:18 PM    in reply to lousgirl84

Heaven forbid!

Eh emmmm. Where's Voodoo Woman when you need her? Yoo hoo, VoooooDooooo.

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April 7, 2010 2:23 PM    in reply to Brownbagger

Lol.....heaven forbid. You keep calling her - I am sure she'll show up if she hears you...

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April 7, 2010 2:41 PM    in reply to lousgirl84

She can hear me!

(Sorry, Sir Lubbe. Had to do it.)

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April 7, 2010 7:55 PM    in reply to Brownbagger

Lol.....I remember.........

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April 7, 2010 3:57 PM    in reply to _jonny_5_

I was just thinking that same thing.

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April 7, 2010 9:54 AM   

Mvilla,

I totally agree. Why not a minority? I'd like to see another Latino, Asian, Arab, Muslim or a Black woman?

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April 7, 2010 10:17 AM    in reply to ru4862

there are no midgets on the bench.

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April 7, 2010 10:33 AM    in reply to storm

I don't think any have cleared the bar. (sorry, I just couldn't resist that one)

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April 7, 2010 1:15 PM    in reply to AZskeptic

low five

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April 7, 2010 10:19 AM    in reply to ru4862

My guess is that we get Kagan this time around. She is young, academic, and has already clerared the senate. I'm sure she gets at least 2 of the 7 repubs that voted for her confirmation as Solicitor General.

Repubs are eager to have a fight. They know they can't fight Finacial Reg. but a Scotus fight?... Their base lives for that.

Don't get me wrong, they will fight it, but if Obama nominates another Minority, things will get ugly. I'm not for coddling these Teabaggers and I'm not against a Minority Nominee (I'm really for more diversity on the court) but I don't think Obama will give the repubs someone to Rally against in an election year.

Obama knows he will get another shot w/ Ginsburg so, as we've seen w/ this president, he will bide his time and choose the more "controversial" nominee in the off election year (probably next summer or the one after, I'm sure Ginsburg doesn't want to chance Obama losing re-election).

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April 7, 2010 10:44 AM    in reply to _jonny_5_

If he gets another chance with Ginsberg after the midterm elections, it would probably make sense to nominate a more progressive person the first time when the Dems are likely to be holding more seats.

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April 7, 2010 10:58 AM    in reply to bentd

But if a controversial pick forces a loss of the senate, there goes any chance for any of his judicial nominees, controversial or otherwise.

He's better off having the fight in an off year (even with smaller majority in the senate) or even in a presidential election year when Obama gets his younger electorate to the polls which would offset any repub base anger at his pick.

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April 7, 2010 3:00 PM    in reply to _jonny_5_

One thing worth pointing out is that it's quite a different matter to filibuster a Supreme Court nominee, as opposed to a piece of legislation.

The Senate has obviously voted down nominees before and that's very much within their purview, but don't believe that a SCOTUS nominee has ever been filibustered and thus not received an up or down vote. Some in the GOP (e.g. Jon Kyl) are hinting they might filibuster if they think the candidate is too "ideological," but that would be an extremely, extremely risky decision given past precedent. There's generally a certain amount of deference to the president on the nomination, but then the full senate gets to vote.

Point being, so long as the Dems have 50 solid votes for any Obama nominee (and no matter how bad the midterms go I think that will be the case), it's likely that anyone Obama nominates (assuming he picks someone basically within the mainstream as seems inevitable) will get an up or down vote and ultimately sit on the bench.

Given that, I agree with Jonny that it might make more sense to do a "safer" pick now and a more liberal/exciting one later in his first term, assuming Ginsburg retires. Even with only 52 Dem senators, I think Obama gets a strong liberal judge to replace Ginsburg in a year or two if he tries for it.

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April 7, 2010 10:04 AM   

Obama is likely to have more political flexibility in nominating a male justice

He shouldn't. Women make up more than half the population but have less than a third of the representation on the SCOTUS.

I think the military experience bit may be a point to note and that having someone with military experience replace Stevens is probably important.

But, frankly, more of the justices need to be female. This is simply a fact.

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April 7, 2010 10:14 AM   

Hillary Clinton would be fantastic. She has served ably as a senator and while it is too early to judge her as secretary of state, she hasn't screwed it up. She knows politics and how to talk to people, and has a lot of friends on both sides of the Senate. Finally, she has one of the best qualifcations: she's never been a judge. A downside is (I don't think) she's ever tried a case or represented a private litigant in one of life's real life legal squabbles.

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April 7, 2010 10:19 AM    in reply to Harry Truman

Clinton's got too much baggage. Arkansas seems like a lifetime ago, but she's been in the public spotlight for too long.

Besides, she's doing an excellent job as SoS; I'd hate to see her leave.

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April 7, 2010 1:37 PM    in reply to Harry Truman

I would love to see Hillary Clinton because one of the Supremes, if for no other reason than to see the right-wingers' heads explode. At just over 62, though, she's probably considered "too old."

How about this to cause nut-job head explosions? Put Joe Biden on the Court (unfortunately, he's a few years older than Hillary) and then nominate Hillary for vice president.

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April 7, 2010 2:00 PM    in reply to navamske

because one of the Supremes
Or become one of the Supremes, even.

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April 7, 2010 2:22 PM    in reply to navamske

Oh yes, yes, yes! The Repugs would go friggin' blind!!!

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April 8, 2010 10:43 PM    in reply to Brownbagger

Which is pretty funny, because she's Repub-Lite, IMO.

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April 20, 2010 12:42 PM    in reply to navamske

There's no need for the quotes around "too old".

62 IS too old. If Republicans keep nominating folks in their early 50s and Democrats nominate folks who are ten years older, guess which direction the court moves in?

Diane Wood is too old, too, although I hate to say it. I think we need a nominee who is around 50. Younger would be better. I'm really tired of losing every single Supreme Court battle by incremental but significant margins.

I also think Elena Kagan should have to lose 40 pounds before being nominated, but that's on another page. What good does it do to get another woman on the court if she dies of heart failure in a few years?

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April 7, 2010 10:42 AM   

I'll be surprised if it isn't Merrick Garland. Obama doesn't want a fight here, he wants financial reform, an energy bill and immigration tackled this year yet, and if there is a SCOTUS fight, all that is pushed to the back burner.

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April 7, 2010 10:44 AM   

If they can get Alito, Scalia and Thomas, then we should be able to get Karlan forgodsake! Why is it that Dems shoot for the middle when Repubs shoot for the extreme right? Face it, they will fight against ANYONE!!! Look what they tried to do with Sotomayor. I say float 3 LEFTIES as potential nominees and pick the BEST ONE!

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April 7, 2010 11:06 AM    in reply to likembrave

Let's face it, even if he had 105 Dem Senators ready to vote for whomever he picked, Obama is not a liberal and would never nominate one to SCOTUS. The Administration might float a name or two to try to keep us interested, but anyone he actually nominates will be someone who will shore up the corporatist center.

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April 7, 2010 7:57 PM    in reply to cwnidog

Blahh blahh blahhh. How's that crystal ball working for you?????

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April 8, 2010 1:10 AM    in reply to lousgirl84

As usual, the authoritarian personality steps in immediately to try to counter any criticism -- any at all -- of its chosen leader figure. And lousgirl84 continues to provide the textbook examples. You can set your watch by it.

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kea

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April 7, 2010 10:58 AM   

If we're going to go for some balance, how about finally nominating an agnostic to oppose all the catholics on the court?

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April 7, 2010 11:13 AM    in reply to kea

I'm sure that would go over well...

He'd have better luck w/ a muslim.

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April 7, 2010 11:20 AM   

How about an Asian lesbian atheist constitutional scholar - anyone? It'd be great to have another woman though. I could live with Kagan, Wood, Napolitano, or Granholm.

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April 7, 2010 2:27 PM    in reply to likembrave

I don't think Margaret Cho has been to law school, has she?

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April 7, 2010 11:22 AM   

Please - just none of this "life experience/judicial outsider" nonsense.

I'm not saying a nominee MUST be a sitting Appellate or Circuit Court judge or Solicitor General or AG -- but s/he had damn well better have a lot of legal experience in his or her background.

There are plenty of liberal candidates that fit that bill.

I'd love to see Karlan get the nod - she's certainly got the legal chops - but that would be the mother of all SCOTUS battles.

Given that Scalia's in his 70s and hardly a paragon of health living, I'd hold Karlan until his second term... Nothing would be quite as delicious as replacing an ailing Scalia with Pam Karlan. It'd be worth it solely for the conniptions from the right. We might see more than a few winger yakkers institutionalized over that.

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April 7, 2010 11:49 AM    in reply to zonk

Napolitano would cover both the "life experience/judicial outsider" category as well as being well-versed in Law since she is a former Arizona AG.

(as much as I'd like to see her take on McCainn for senate, which seems quite unlikely)

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April 7, 2010 3:34 PM    in reply to _jonny_5_

Not to mention Nepolitano is really strongly rumored to be a lesbian, which would REALLY make the tea partier's heads explode. She has experience as a United States Attorney. I think she would be an excellent selection and actually wants the job. As much as I would enjoy seeing her wipe the floor with McCain or Hayworth, she would do more good for a longer period of time on the court.

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April 7, 2010 2:26 PM    in reply to zonk

I think Obama will also look for someone with political experience which IMO is a very good thing. I am confident he will nominate a very liberal person at least as liberal and foward thinkiing as Stevens...

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April 7, 2010 2:32 PM    in reply to lousgirl84

It really doesn't matter. Whomever he nominates will suddenly become a secret IslamoCommunistAntichrist whose confirmation will rain asteroids on white people and all good Christian folk.

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April 7, 2010 3:06 PM    in reply to Brownbagger

I assume you mean that they will become a "secret IslamoCommunistAntichrist whose confirmation will rain asteroids on white people and all good Christian folk" solely in the eyes of conservatives.

If not I'd actually be more excited. "Secret IslamoCommunistAntichrist Whose Confirmation Will Rain Asteroids on White People and All Good Christian Folk" would probably make for excellent television! I mean I'd be hit by an asteroid since I'm white, but things have been getting boring lately so I'd probably get behind this kind of thing.

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April 7, 2010 3:19 PM    in reply to Geoff Johnson

Yes, it seems asteroids will be reserved for only conservatives. Sorry you'll be missing out on the fun. I don't make the rules.

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April 7, 2010 6:34 PM    in reply to lousgirl84

When asked a few years ago why he had moved to left after joining the Supreme Court, Stevens said he had not moved to the left, but instead the Court had moved to the right. In other words, contrary to what many people think, Justice Stevens is not a liberal. Like Souter, who also was considered by some to be part of the so-called "liberal wing" of the Supreme Court, he is a judicial moderate. He only seems like a liberal in contrast to the very conservative Justice Kennedy and the ultra right wing judicial activists such as Scalia and Thomas.

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April 7, 2010 7:59 PM    in reply to taikan

Actually I didn't remember that but I will stand by my statement that Obama will nominate a liberal to SCOTUS and he will also have some political experience.........

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April 8, 2010 8:57 AM    in reply to taikan

Keep in mind: both Souter and Stevens are ostensibly Republicans. Both were nominated by Republican presidents and both were registered Republicans prior to ascending to the judiciary.

In Stevens' case, the party and the court has moved drastically to the right over the past 35 years. And Souter's from New Hampshire, where "Yankee liberal Republicanism" could still be found in the early 1990s.

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April 7, 2010 11:45 AM   

Hopefully President Obama will remember for SCOTUS, as the abortion spin continues, that is was all Democrats (especially those pro-life before birth with those pro-life after birth) that enabled HCR to pass.

During the recommit debate, it was stated:

It is the Democrats who have stood up for the principle of no public funding for abortions. It is Democrats through the President's executive order that ensures the sanctity of life is protected because all life is precious and all life should be honored.

Democrats guarantee all life of the unborn to the last breath of a senior citizen is respected, for the unborn child and his or her mother will finally have pre- and postnatal care under this bill…

We stand for the American people! We stand up for life! Vote no on this motion to recommit…

Action speaks louder than spin. Time will tell.

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April 7, 2010 1:01 PM   

From Obama, we'll get either Kagan, Garland or Harold Koh over at State.

I'd love to have Karlan, Cass Sunstein or Diane Wood. But, I'm not going to hold my breath.

Here is a good rundown from electoral vote:

http://www.electoral-vote.com/


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April 7, 2010 1:17 PM    in reply to willia451

Wonder why there was no mention of Koh. His State appontment was blocked initially, but he was confirmed 62-35, with 4 Republicans voting for him.

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April 7, 2010 1:06 PM   

Patricia Williams FTW!

Damn that would be awesome.

I would have said Derrick Bell, but he's 80 years old. Jack Balkin would be great. I'm not going to be happy unless Obama nominates someone explicitly liberal or left-wing. But I will settle for not-crazy.

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April 7, 2010 1:22 PM   

I'm not qualified to judge the respective merits of any particular candidate over another. For me there are only three relevant qualifications: smart, liberal and young.

If liberals don't demand the nomination of an unabashed, agressive liberal this time, liberalism has ceased to exist as an influential force in this country and those who truly believe in those principles should end their association with a party that now quite openly pays only lip service to their principles -- even, or especially, if another right wing lunatic is elected as a result. At least democrats pretend to be outraged over Executive criminality when they are out of power.

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April 7, 2010 1:27 PM   

We won healthcare. We've got the majority. Let's use it. Liberal, Liberal, Liberal. Got to balance the Alitos, Scalias and Thomas' of the Far Right.

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April 7, 2010 1:40 PM    in reply to traitorjoe

Yes And No...

We need a reliable liberal Vote to replace Stevens' not a liberal that fits a right-wing characture of a liberal.

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April 7, 2010 1:45 PM    in reply to _jonny_5_

Who cares what the Right Wing thinks?

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April 7, 2010 2:35 PM    in reply to traitorjoe

I agree. If we go the votes, step on their throats.

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April 7, 2010 2:58 PM    in reply to Brownbagger

I don't care what the Right wing Thinks.

They are going to scream Liberal no matter who get the Nod.

So, nominate someone who is liberal, but not so much Liberal on Paper. This is what Bush did w/ Roberts/Alito.

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April 7, 2010 3:01 PM    in reply to Brownbagger

Sorry. I of course meant:

If we got the votes, step on their throats.

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April 7, 2010 1:40 PM   

Why even report on this without talking about the age of the candidates? I can assure you, when the GOP thinks about this issue, after making sure their candidates are safely ensconced in the far-right end of GOP thought, the very first thing they think about is age. I don't care how liberal a candidate is; if they are over 60, I am not interested at all, and if they are over 50, I'm discouraged.

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April 7, 2010 8:01 PM    in reply to jfields

I am sure Obama will select someone in their 40s or 50s - hopefully somewhere in between.

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April 7, 2010 2:00 PM   

I think Harriet Miers is still available...lol

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April 7, 2010 2:02 PM   

Geoff Stone FTW!

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April 7, 2010 2:13 PM   

Um, how about Elizabeth Warren?

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April 7, 2010 2:34 PM   

Harold Koh, please. And mvilla's suggestion of Elizabeth Warren is interesting, although she is 60.

Absolutely not Cass Sunstein, who never encountered an expansion of executive power he didn't like.

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April 7, 2010 2:41 PM   

He could nominate Jesus and they would vote no. So he might as well nominate a liberal, it really does not matter to the likes of Mitch McConnell.

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April 7, 2010 2:45 PM    in reply to runfastandwin

Yep. I say go for it. I think people are getting sick of seeing these guys whine about everything he does. I say make 'em scream. It shows them for the lunatics they are.

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April 7, 2010 4:12 PM    in reply to runfastandwin

I agree. The Righ Wing would accuse Jesus of being a Hippy Liberal. Oh and a Commie too (to use your favorite accusation).

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April 7, 2010 2:44 PM   

whoever they pick I just hope they wear a bowtie. He is my favorite SC Justice becuase he always wears a red little bowtie.

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April 7, 2010 3:58 PM   

Elena Kagan? I can hear the GOP anti-semitism machine gearing up now.

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April 7, 2010 4:22 PM   

Obama should nominate Karlan. When the Republicans start to scream, let 'em scream for a good long while, then "concede" and nominate someone even more liberal.

If they scream twice in a row, even the politically inattentive will recognize their automatic obstructionism for what it is.

Establish that every time the Repubs scream, the next "compromise" will be even more liberal. They'll learn.

(Karl Rove is pure evil, but some of his cynical tactics could be politically effective.)

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April 7, 2010 4:25 PM   

Obama should nominate Karlan. When the Republicans start to scream, let 'em scream for a good long while, then "concede" and nominate someone even more liberal.

If they scream twice in a row, even the politically inattentive will recognize their automatic obstructionism for what it is.

Establish that every time the Repubs scream, the next "compromise" will be even more liberal. They'll learn.

(Karl Rove is pure evil, but some of his cynical tactics could be politically effective.)

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April 7, 2010 5:12 PM   

"Will Obama go with a safer centrist choice and avoid a protracted fight with elections on the horizon?"

Do you think Vegas would post odds on this question? 'Cause it's hard to see anybody betting on 'no'.

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April 7, 2010 5:19 PM   

It's also worth saying something about this:
"Or will he try to maintain the current balance of the court by nominating a jurist as liberal as Stevens became late in his career?"

Stevens didn't become liberal. What happened was that the actual liberals (Brennan and Marshall) retired and were replaced by conservatives far to the right of Stevens. Being to the left of Scalia-Thomas-Kennedy-Alito-Roberts doesn't mean that one is liberal, any more than being shorter than Dwight Howard means that one is short.

The current Court doesn't have any actual liberals. Even Ginsburg, Breyer, and Sotomayor are more 'centrist' than 'liberal'. I would argue that, since no 'liberal' has been appointed to the Court since Thurgood Marshall, that the court is long overdue for an actual liberal who can provide some intellectual push-back to this Scalia-dominated court.

How about that for some "minority representation?"

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April 7, 2010 6:51 PM   

As much as it would be nice to have at least one justice on the Court in the mold of the late Justice William O. Douglas, who was a law professor and then became the SEC Chairman before being nominated, Obama has to keep in mind that all of the more recent appointees to the Supreme Court have had prior appellate court experience. Even Thomas was on the DC Circuit for a couple of years before becoming a Justice. Therefore, it will be difficult for Obama to avoid arguments about competence if he selects someone who is not already on the bench.

This is why it is important for Obama to get relatively young liberals on the Circuit Courts as much as possible. It's also why the Republicans are likely to filibuster any such nominee.

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April 9, 2010 1:05 PM   

#1 priority is getting a true blue liberal on there.

Just like when replacing a woman, you want to find another woman, when a liberal retires, find a liberal replacement.

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April 9, 2010 1:51 PM   

Elizabeth Warren!

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April 9, 2010 4:01 PM   

We need a pick that can piss off the old Sicilian so much he vapor locks and we get one more pick. Ethnically only a Jewish, Italian, or Black female, could drive him bat shit. Day one comes in and calls him Lil'l Tone or tells him how cute he is when he turns red. God I would love it. "Come over and get some brown sugar lil'l tone and calm yourself down"

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