Let's admit it already: Justice Stevens is retiring this year

John Paul Stevens hasn’t said he’s retiring after the current Supreme Court term ends, but he’s hinting at it very hard [in a New Yorker profile last month and a New York Times article over the weekend, for starters]. I assume he wouldn’t be talking about retirement and dealing with the press this much if he wasn’t planning to leave. He’s supposed to announce a decision in a few days and all indications are that he’s retiring in June. Even if he doesn’t retire now, in the New Yorker piece he made it clear he’ll retire during Obama’s term. Seeing as how he’ll be 90 later this month, this is not a great surprise.

The list of leading candidates is probably about the same as it was for Souter’s spot - Kagan, Wood, etc. - but I’m wondering if the events of the last year are going to change Obama’s options and affect the pick, maybe nudging him toward the middle somewhat. He was more popular a year ago and I don’t think any of the Democrats really thought about opposing him. (It helped that the opposition to Sotomayor, while sometimes passionate, had no substance and was really stupid when you got down to it.) But it’s a midterm year and Democrats generally are not feeling good about the political climate. The Republicans might feel better about their chances to gain public support for a filibuster. And there’s “no cooperation” and all.

So I’m wondering what others expect here. I think this stuff is probably a wash because while the GOP has been successful in stirring up opposition to Obama on some fronts, they haven’t given him much incentive to work with them. In the end he’s probably fine as long as he makes sure his nominee has a very strong resume and no damaging gaffes. Who will that be?

I hope Obama doesn’t wimp out on someone who would be “acceptable” (HA!) to Republicans. Stevens, unlike Souter, is a pretty consistent liberal on the court (well, liberal as far as the current court goes, anyway). Obama needs to make sure there’s a counterbalance to the Axis of Evil on the other side (RATS: Roberts, Alito, Thomas, Scalia). There are plenty of liberal judges with gravitas and a sense of law on the federal bench. Wimping out by appointing a “moderate” in order to avoid a pitched battle in an election year would severely cut into my Obama admiration (and he’s not doing that well from this gay man’s perspective as it is).

On the other hand, as the Repubs are discovering with thier “repeal the Health Care Reform” trial balloon, the general public is getting pretty sick of thier obstructionist-for-obstruction’s-sake attitude as well. A protracted fight against an otherwise qualified canidate based solely on idealogical difference can just as easily blow up on them as it could the Dems.

I hope Stevens is replaced by an intellectual giant with a coherent and consistent philsophy of law and the constitution. Someone like Ronald Dworkin, but he is too old.

We need someone who can challenge the prevalence of textualism, and not from a pragmatist viewpoint.

It would be great if a few more liberal stalwarts would retire as well … there is no guarantee that Obama will be President in 2012 … and it wouldn’t hurt to have some long-lasting progressives on the court to counterbalance the RATS.

I think Obama should do what I was saying last time - nominate Michael Luttig. The conservatives would be thrown into utter confusion trying to figure out whether they should offer their complete support for one of the most conservative judges in the country or their complete opposition to any Obama nominee. I think we could count on a few exploding heads.

The Republicans have already said they’re going to filibuster who he picks. Well, John Kyl has said they will filibuster who he picks if that person is “an overly ideological person”. Kyl also said that the filibuster is “wrong and it shouldn’t be done”, but that since Democrats do it, Republicans will have to do it too.

I’d personally like to see him pick Cass Sunstein, or maybe Seth Waxman.

From a strictly non-partisan position, although Obama would never do it, and if I were one of his advisors, I wouldn’t tell him to do it, because he’s both too conservative and too old, but from a strictly Constitutional scholar standpoint, it would be great to have Richard Posner on the court.

Alternatively, Alex Kozinski would be fun.

I hope you’re not serious, because that’s just plain silly.

The only heads exploding would be here on this MB and among the Dems in Congress (oh, and every other left of center Obama supporter in the country). The Republicans would support him, no problem.

This is perhaps the worst of the consequences (“elections have consequences”) from Obama’s ascension. I believe that the prevalence of textualism is both wise and correct. We do NOT need anyone to challenge it. And I fear mightily that Obama, a smart con law guy himself, will find someone who is smart, persuasive, and an effective proponent of the “Living Constitution” worldview.

That would be bad.

Obama could not avoid a pitched battle with the Republicans even if he nominated Ricky Polston.

Well, there is much to be said for textualism, and it should be represented on the Court. But to be represented to the exclusion of other legal philosophies is unhealthy. The Court should be a place of debate, and it is sad to think of it otherwise.

The only way an theory validates itself is through the process of being challenged.

I’d like to see Kim McLane Wardlaw considered…because we used to walk home from the bus stop together in high school.

Can’t he be both, like the late Earl Warren? (Yes, it’s amusing but completely silly.)

Assuming Stevens goes, that would be two of the four. And Ginsburg’s health has been poor, so I would not be surprised if she leaves fairly soon also. None of those retirements would give the left what it really wants, of course: they preserve the balance of the court but wouldn’t change it. If one of the conversatives retired I’m sure the battle would be much more intense.

We could all do worse than have to deal with someone who’s smart, persuasive, and wrong. In fact a court is probably where you want people with an alternative ponit of view who are couple smart, persuasive, and wrong.

So, if Stevens retires in June, can the GOP delay the confirmation hearings till after the next election? I seriously doubt they’d be able to mount a successful filibuster with the current Senate, so their only hope would be to pick up a couple seats in the next election (and even then, I think they’d have a hard time).

Which also probably gives Stevens an impetus to leave sooner rather then later.

Well, we all know that it’s very unlikely any of the conservative justices will retire anytime soon. And unlike certain conservative lawmakers, I do not wish any ill health or death on the RATS, even if they are a bunch of ideological scumbags to whom the lives of women are nothing.

The court doesn’t pay enough for Luttig anyway. That was the excuse he used when he left the 4th circuit to go to Boeing. He said, “Hey, I’ve got kids who are going to go to college. I want to be able to pay for them, and can’t afford it on a government salary.”

I’m not sure how you delay a confirmation hearing itself. You can filibuster a nominee, though. If they did so and were successful the court would have only eight judges from October to at least January, and probably longer than that. I guess that wouldn’t bother the GOP since they would have the majority and even if Kennedy voted with the liberal bloc you’d get a lot of 4-4 ties.

The Republicans have to live with the reputation they’ve earned - they now stand for automatic opposition to anything just for the sake of opposing.

And this is as valid an ideological test as any others that are being used.

If Obama really wants to make the GOP vomit blood (which should be a goal of his every once in a while), he should nominate Bill Clinton. But, in reality I doubt that a white male will rise to the top of the list.

SUNSTEIN! SUNSTEIN! SUNSTEIN! /waves foam finger with “Sunstein #1” on it.

Seriously, that would be fantastic - a serious con law scholar with tremendous respect fo the First Amendment, and the admin law chops to go toe-to-toe with Scalia.

Agree that Kozinski would be a hoot - too conservative for my taste, but he’s got even more style than Scalia.