Who should replace Justice Stevens?

Topic A
Sunday, April 11, 2010

The Post asked legal and political experts how President Obama should consider his next Supreme Court vacancy. Below, assessments from Sen. Arlen Specter, Jonathan H. Adler, Jamie S. Gorelick, Erwin Chemerinsky, Walter Dellinger and Edward Whelan.


Member of the Senate Judiciary Committee

In his 34 years on the Supreme Court, Justice Stevens has been pivotal to maintaining balance on the interpretation of constitutional law as the court has moved decisively to the right. His scholarly 2004 opinion in Rasul v. Bush tracing the development of habeas corpus since the Magna Carta provided the basis for the court's landmark 2008 decision in Boumediene v. Bush limiting the president's detention power. His dissents in Bush v. Gore and Citizens United rank with the classic dissenting opinions of Justices Oliver Wendell Holmes and Louis Brandeis that later became the law of the land.

His successor will need the intellect, skill and tenacity in the intimate Supreme Court conference room to stop the further expansion of the president's executive authority as commander in chief and the erosion of congressional power to legislate under the Constitution's commerce clause and civil rights amendments.

He will be hard to replace, but that is what the court needs.

It is my hope that President Obama will appoint someone other than an appeals circuit judge (the other eight are sufficient); someone with diversity of experience; someone such as a senator like Hugo Black or a governor like Earl Warren or an attorney general like Robert H. Jackson or a president like William Howard Taft.

I urge my colleagues to set aside partisanship as we look to the confirmation process.


Law professor and director of the Center for Business Law and Regulation at the Case Western Reserve University School of Law

Although a moderate justice when he first joined the Supreme Court, John Paul Stevens gradually shifted to the left and emerged in recent years as the leader of the court's liberal wing. Stevens's replacement is unlikely to alter the ideological balance on the court but could well affect the court's interpersonal dynamic. A new justice who is respected for his or her intellect and is capable of building coalitions is likely to have a greater influence than one who is more ideologically pure or predictable.

Stevens became so influential on the court because he was flexible and willing to compromise in crafting majorities. If he is replaced with a "liberal lion" -- as some have urged -- the result may be many rhetorically pleasing dissents, but less of an impact on the court and the law. The conventional wisdom has identified three potential nominees as favorites: Solicitor General Elena Kagan, Judge Diane Wood of the U.S. Court of Appeals for the 7th Circuit, and Judge Merrick Garland of the U.S. Court of Appeals for the D.C. Circuit. It's conventional wisdom for a reason. All three are widely respected for their intellect and experience, all are liberal, and all are believed to be capable of working effectively with those who do not share their views, and so could be potential bridge-builders on the court.

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