Friday's announcement by Supreme Court Justice John Paul Stevens that he'll be stepping down after 34 years on the job was no surprise, as the 89-year-old Justice has been telegraphing as much to reporters in the past few months.
So naturally there is excitement and concern among both liberals and conservatives about who President Obama will nominate to replace Stevens, a man who insists that he not grown more liberal since he came on the court, but simply that the court has drifted more right over the years, and certainly has done so with the ascension of John Roberts and Samuel Alito in recent years.
Yesterday Senate Republicans like Jeff Sessions of Alabama and Jon Kyle of Arizona played their cards close to the proverbial vest when it came to deciding to announce publicly whether they might filibuster the nominee, which makes sense considering the President has only had 48 hours to know about this and hasn't selected any yet.
But what about Joe Lieberman, the former Democrat turned Independent? Appearing on Fox News Sunday, the Connecticut Senator said the Court would probably less liberal, saying,
This is a fascinating moment maybe for all these reasons, acknowledging that the fact that Justice Stevens became the leader of the liberal wing of the Supreme Court, that President Obama may nominate someone in fact who makes the Court slightly less liberal, at least for a while.
Speculation has centered around Diane Wood, Elena Kagan, Pamela Wood, Merrick Garland, and a couple of wild cards, such as Michigan Governor Jennifer Granholm, Minnesota U.S. Senator Amy Klobuchar and Homeland Defense Secretary Janet Napolitano.
Tom Goldstein, the author of SCOTUSblog.com handicaps the candidates in the New Republic , but says the Court could prove Lieberman right and not be as liberal:
Unfortunately for liberals, that does not equate with any significant likelihood that the President will appoint a thoroughly and avowedly progressive nominee. Don’t confuse the desire to accumulate political capital (by positioning the Administration against unpopular rulings by the Court) with the need to avoid expending that capital unnecessarily (by picking a big confirmation fight). Instead, the Administration is likely to take a hard rhetorical stand against rulings that it believes can be framed as pro-corporate, while nominating a candidate who will sail through the confirmation process.
As I suggested above, on some level, this is all about the decision whether to nominate Seventh Circuit Judge Diane Wood. If the President’s priority were to appoint a brilliant, moderately liberal jurist in whose views he has confidence (because she has a track record), he would appoint Judge Wood. No judge on the left in the country is so uniformly respected for her intellect and thoughtfulness. She is amazingly articulate, and at a hearing would be no less impressive than was Chief Justice Roberts. She will be the near-uniform choice of the groups on the left—at least those who have given up on the dream of Pam Karlan.
Meanwhile, who benefits politically? An article written by Suzy Khimm and David Corn and in Mother Jones says the GOP will enjoy more of a windfall from the nominating process.
Obama said on Friday that he'd like a new justice confirmed by the October recess. That means the Senate will be debating a nominee just as the midterm elections are heating up. Whoever is nominated, Republican and conservative groups will use the hearings to rally supporters and raise money—perhaps to use more for the congressional contests than for any effort to defeat the nominee. "Different groups will use a Supreme Court fight differently. The one common denominator, of course, will be donors and supporters," says Michael Turk, a Republican new media strategist, and, he adds, the Republican National Committee and the National Republican Senate Committee—the party’s major fundraising arms—"will use it to portray the left as out of the mainstream, too liberal."
The confirmation debate could also hand both Republicans and Tea Party activists a chance to super-charge their attack on the constitutionality of health care reform and prolong the sparring over that issue at a time when Democrats had hoped to shift the conversation to jobs and financial regulation.
This article appears in Apr 7-13, 2010.