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Who should replace Justice Stevens?


Deputy attorney general in the Clinton administration; partner at WilmerHale

Two considerations will be top priorities for President Obama. The first is the impact a nominee will have on the court itself. The president, a constitutional scholar, knows the importance of the intellectual depth and integrity of an individual justice. If he hopes to have the court reach majority opinions aligned with his thinking and retrieve the center from the court's rightward shift, he will need a brilliant nominee who can go toe-to-toe with but also persuade conservatives on the court of his or her position. In the rarefied environment of the Supreme Court, this calls for someone who is highly regarded across the legal community and academia for clarity of thought, principled decision-making, dedication and -- most important -- persuasive collegiality, especially with those who hold different views.

The second major consideration is that this confirmation process will take place just before the midterm elections. There will be intense media attention paid to what kind of person the president has selected. Presidents are very aware that their choices for the court reflect on them. President Obama's first nominee, Justice Sonia Sotomayor, reflected well on him. Her record of achievement was impressive and her personal story compelling. The American people could admire and relate to her. President Obama will want a nominee who illustrates to the American people that he is principled, thoughtful and fair-minded.


Founding dean of the School of Law at the University of California at Irvine

It is important that President Obama select a justice who is liberal as John G. Roberts Jr. and Samuel Alito are conservative. It should not be the case that Republican presidents can successfully nominate very conservative justices but Democratic presidents must pick moderates. The challenge for Obama will be finding such an individual who can be confirmed without a major battle. That was the brilliance of the nomination of Justice Sonia Sotomayor last summer: Obama needed to expend no political capital to get her confirmed.

One way to accomplish this and simultaneously serve other goals will be to choose a highly qualified individual who has served as a governor or senator, rather than a court of appeals judge or law professor. Such a nominee is less likely to have a legal paper trail to be dissected.

More important, though, such a justice would bring real-world experience sorely missing on today's court. Each of the current nine justices had previously been a court of appeals judge. None of the nine justices who decided Brown v. Board of Education had ever been a court of appeals judge.

Justice John Paul Stevens's replacement is unlikely to shift the court's ideological balance in the short term. But if the new justice serves, like Stevens, for nearly 35 years, he or she will be justice until the year 2045 and will make a difference for decades to come.


Head of the Office of Legal Counsel in the Clinton administration; partner at O'Melveny & Myers

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