By Robert Barnes
Washington Post Staff Writer
Saturday, April 10, 2010; A01
Justice John Paul Stevens announced Friday that he will retire this summer, and President Obama said he will move quickly to replace the Supreme Court's liberal leader and longest-serving member with someone who shares the belief that "powerful interests must not be allowed to drown out the voices of ordinary citizens."
Stevens, who will turn 90 on April 20, said in a letter addressed to "My dear Mr. President" that he will leave the court when the current term concludes at the end of June.
A Republican named to the court in 1975 by President Gerald R. Ford, Stevens leaves a legacy of defending abortion rights, expanding protection for gays, restricting the availability of the death penalty and ensuring a robust role for judges in interpreting the nation's laws and curbing executive power.
He probably leaves with a sense of frustration as well: The court's conservative wing has become increasingly dominant under Chief Justice John G. Roberts Jr. The success Stevens enjoyed in putting together slim majorities for liberal outcomes made way for stinging dissents in which he has accused the current court of ignoring years of precedent.
Appearing in the White House Rose Garden shortly after his return from a trip to Europe, Obama described Stevens as a "brilliant, non-ideological, pragmatic" justice who "applied the Constitution and the laws of the land with fidelity and restraint."
Obama said he hoped the Senate would make sure Stevens's successor is in place for the beginning of the court's new term in October. The president listed the qualities he will look for in a nominee: "an independent mind, a record of excellence and integrity, a fierce dedication to the rule of law and a keen understanding of how the law affects the daily lives of the American people."
Stevens has made clear for months that he was thinking of retiring, and the White House has been preparing for another opening.
Aides and Democrats close to the process named three people as probable front-runners for the job: Solicitor General Elena Kagan, whom Obama appointed as the first woman to hold the post; Judge Diane P. Wood of the U.S. Court of Appeals for the 7th Circuit in Chicago and Judge Merrick B. Garland of the U.S. Court of Appeals for the D.C. Circuit.
It will be Obama's second chance to leave a mark on the court; because of justices' lifetime tenure, the decision can be one of a president's most lasting legacies. Last summer, Obama made history by nominating the court's first Latina member, Sonia Sotomayor, an appellate judge from New York.
But even with another choice, Obama will not shift the court's ideological balance. The court has four justices, including Stevens, who consistently are on the left and four, including Roberts, consistently on the right. Justice Anthony M. Kennedy often provides the deciding vote in close cases, and more often sides with conservatives.
But Stevens's departure will change the inner workings of the court. As the senior justice, he speaks second, after Roberts, in the private conferences in which the court makes its decisions. If he, instead of the chief justice, is in the majority, Stevens decides who will write the court's opinion. Legal experts say that at times he turned over an opinion to Kennedy, or former justice Sandra Day O'Connor, to secure five votes for limiting the death penalty, for instance, or defending affirmative action.
For that reason, the loss of Stevens will be felt even if he is replaced with a justice who shares his views. It is unlikely in the near future that any of the court's conservative justices would willingly step down.
Nan Aron of the liberal Alliance for Justice said Obama should pay no heed to Senate Republicans who warn him against a nominee as liberal as Stevens.
"Republicans will oppose any nominee sent up by the president," she said. "This is already a court that's tilted in favor of large corporations and special interests. Justice Stevens's replacement ought to be a person who understands how decisions affect the rights of everyday Americans."
But even in statements that contained tributes to Stevens's longevity and patriotism, Senate Republicans said they would be watchful for a nominee who made decisions based on his or her "own views and political agendas," in the words of Sen. Jeff Sessions (Ala.), the ranking Republican on the Senate Judiciary Committee.
"That approach is deeply unpopular with the American people, and any nominee who subscribes to it should expect bipartisan opposition," Sessions said.
The White House will begin the search with the list compiled last year when Justice David H. Souter retired. But selecting a Supreme Court nominee is a far more complicated task than simply naming the president's favorite. It is an "idiosyncratic" exercise, according to David Yalof, a political scientist at the University of Connecticut, that involves a president's political standing, the makeup of the opposition party in the Senate, the willingness for a fight and the status of the White House's agenda in Congress.
The president's choice can be symbolic as well, as Obama proved with Sotomayor. And the current justices, while ideologically divided, present similar backgrounds. All eight who will remain after Stevens are former appeals court judges, and all were educated at Ivy League law schools. None has run for political office. Stevens is the only justice with extensive service in the military, and he is the only Protestant among six Catholics and two Jews.
Kagan, who has never been a judge and has a limited number of writings on the law, and Garland, a former prosecutor who is seen as a moderate on the influential appeals court in Washington, are considered by some in the White House as the least likely to engender a battle in the Senate.
Wood, a former colleague of Obama's at the University of Chicago Law School, is a favorite of the left. But she is opposed by antiabortion activists because of her rulings on the issue, and her selection would ensure that abortion gains increased prominence in an election year.
Homeland Security Secretary Janet Napolitano is close to Obama, and the former Arizona governor would bring a politician's perspective to the court, something that has been missing. But her selection would also encourage a debate on the administration's national security and terrorism policies.
The president might also want to expand the demographic change he has started. The court has never had two African Americans serve simultaneously, nor three women.
Ford was not making an ideological choice when he picked Stevens, who had been appointed to the appeals court in Chicago by President Richard M. Nixon. With a trademark bow tie and a reputation built on investigating judicial corruption, Stevens is of another generation of Supreme Court nominees. He was approved unanimously only 19 days after his nomination.
The tributes that rained in after his announcement Friday from civil liberty groups, abortion-rights activists and feminists suggest that Republicans might not have gotten what they expected in his long tenure. Stevens insisted that the court changed more than he did, but his evolving positions on capital punishment and affirmative action show there was change on both sides.
But at least one Republican was not disappointed. Before he died, Ford wrote a letter in conjunction with a seminar examining Steven's legacy.
He said he was "prepared to allow history's judgment of my term in office to rest, (if necessary, exclusively) on my nomination thirty years ago of Justice John Paul Stevens."