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Replacing Justice Stevens sets up a political test for Obama

Justice John Paul Stevens, second from right, sits with other members of the Supreme Court. He will retire this summer. 

Associated Press (2006)

Justice John Paul Stevens, second from right, sits with other members of the Supreme Court. He will retire this summer. 

WASHINGTON — The announcement Friday by Justice John Paul Stevens that he would leave the Supreme Court after a 35-year tenure presents the White House with a heady political calculation.

It could invest its efforts, energy and capital in a potentially draining fight this summer over a Supreme Court nominee like Diane Wood, a Chicago federal appeals judge with controversial rulings on abortion in her past who would almost guarantee a raging firefight over her confirmation.

Or it could move toward a less-controversial selection, such as Washington, D.C., appeals court Judge Merrick Garland, in a bid to bolster its domestic agenda in advance of this year's congressional elections. While Garland has already been spoken of favorably by some conservatives, a third possibility, Solicitor General Elena Kagan, is also seen as less combustible than Wood.

Stevens, the court's leading liberal but a justice who also could find conservative allies, said Friday — 11 days before his 90th birthday — that he would step down when the court finishes its work for the summer in hopes that a replacement could be confirmed well before the next term begins in October. He began signaling a possible retirement last summer when he hired just one of his usual complement of four law clerks.

Administration officials say that the process to select Stevens' replacement will take place over the next several weeks and that beyond the three leading candidates, at least seven other names are being considered. Speculation has also arisen around Michigan Gov. Jennifer Granholm, Massachusetts Gov. Deval Patrick and Sen. Amy Klobuchar, D-Minn., although the White House would not confirm they are under consideration.

The nominee should have "a keen understanding of how the law affects the daily lives of the American people,'' President Barack Obama said. "It will also be someone who, like Justice Stevens, knows that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens."

On paper, it would seem that this would be Obama's last chance to appoint an assertively liberal choice to replace Stevens. Democrats hold a majority in the Senate — 59 seats. Next year, their grip on the chamber could be more tenuous.

But Obama confronts a decidedly different environment than last year, when he tapped New York federal appeals court Judge Sonia Sotomayor for the court. For one thing, the president sits at his lowest ebb in terms of his popularity. For another, Democrats no longer hold a filibuster-proof majority in the Senate, meaning that Republicans could block a controversial pick.

Some warn that Obama's nomination, if it sparks a fierce partisan response, could poison the political environment on other issues.

"He still has a fairly ambitious agenda between now and November," said Ryan Patmintra, press secretary to Senate Republican Whip Jon Kyl, R-Ariz. "Does he want to pick his battle here?"

Senate Republicans served notice that they plan to closely scrutinize Obama's choice.

"As we await the president's nominee to replace Justice Stevens at the end of his term, Americans can expect Senate Republicans to make a sustained and vigorous case for judicial restraint and the fundamental importance of an even-handed reading of the law," said Senate Minority Leader Mitch McConnell, R-Ky.

A bloody, full-throated confirmation fight later this summer could serve as a distraction from the overall Democratic message heading into the fall, one that will be centered on painting Republicans as out-of-step with everyday Americans. To that end, the president is expected to use the nomination as a platform for further criticism of the Supreme Court's decision allowing unlimited corporate spending in federal elections.

A polarizing fight could dilute that message, much as Sotomayor's confirmation hearing last year turned into a public debate over affirmative action.

All of those factors suggest that the White House may want as close to a no-fuss, no-muss nominee as they can find, and at least two of the potential picks could potentially fit that bill.

Garland, 57, is a former federal prosecutor who helped spearhead the prosecution of Timothy McVeigh, the Oklahoma City bomber. He was named to the federal appeals court by President Bill Clinton and is viewed as a judicial moderate.

Kagan, 49, is a former dean of Harvard Law School, where she won praise for her solicitousness toward conservatives. As solicitor general, her views of the reach of executive power during wartime have enraged many liberals. She has no judicial experience.

Wood, 59, taught with Obama at the University of Chicago, and many believed she would be the president's choice last year rather than Sotomayor. But antiabortion groups have targeted her since her candidacy came to light. She has said bans on so-called "partial-birth" abortions are unconstitutional and has upheld the right of abortion rights groups to use the RICO statute to sue abortion protesters, a ruling reversed by the Supreme Court.

Stevens' retirement may mean he and his wife, Maryan, will spend more time at their oceanfront Fort Lauderdale condominium.

The justice now spends about two weeks of each month from November through April in Fort Lauderdale, and he has told interviewers he does much more work from his Florida home than he does in Washington.

For years, many of his neighbors did not know who he was.

"I'm basically anonymous down there, which is the way I like it,'' Stevens told the New York Times in a 2007 interview.

Information from the Associated Press and South Florida Sun-Sentinel was included in this report.

Replacing Justice Stevens sets up a political test for Obama 04/09/10 [Last modified: Friday, April 9, 2010 10:53pm]
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