Justice John Paul Stevens to retire from the Supreme Court

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Emily Bazelon
Slate Senior Editor
Friday, April 9, 2010; 1:00 PM

Supreme Court Justice John Paul Stevens announced today his intentions to retire this summer. Slate senior editor Emily Bazelon discussed Stevens, his possible replacements (and their confirmation hurdles) and how this will affect the composition of the court.

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Tucson, Ariz.: What about Martha Minow the dean of Harvard Law? The president went to school there.

Emily Bazelon: Martha Minow is a great dark horse candidate. I've known her my whole life--she clerked for my grandfather, who was a judge on the D.C. Circuit--and she's an utterly kind person, in addition to being super smart. Here's what we wrote about her in Slate last year:

Martha Minow, 54, is a star legal academic at Harvard Law School and a leading expert on family law, a field she entered in 1980 despite being told it would stereotype her. "She helped bring alive the field," former Stanford Law School Dean Kathleen Sullivan (a fellow short-lister) said in a 1997 profile in the Boston Globe. Minow's interest in making sure that kids grow up in stable families, she explained in a 2001 op-ed, led her to become a plaintiff in a suit that challenged the constitutionality of a voter initiative in Massachusetts that tried to ban same-sex marriage. "Research makes it irrefutable that a definition of family founded solely on an official marriage of a man and a woman is out of touch with how people actually live," she wrote.

Minow has also been active in human rights, serving on the Independent International Commission on Kosovo, which tried to understand whether the atrocities committed there in the 1990s could have been prevented, and helping to launch a program of the U.N. High Commission for Refugees called Imagine Coexistence, which assessed efforts to reintegrate refugees after violent ethnic conflict and produced a book.

Her latest book, Just Schools, is about how schools can pursue social equality and accommodate students from different racial, ethnic, and religious backgrounds. She talks about those themes here. As a teacher, she takes steps to make sure that all kinds of students speak up in class. "I am quite conscious to count seconds, usually 25 to 30, between raising a question and finding a volunteer," she told the New York Times in 2004. "Some people who take time to think might have better things to say. Women typically won't shoot up their hands first."

Minow is close to Obama, whom she mentored when he was a law student at Harvard. Her father, former FCC Commissioner Newton Minow, gave Obama his first legal job, hiring him as a Chicago law firm summer associate. She has been a strong backer of the president, but she also speaks with her own voice: In an op-ed in March, she warned the government to make sure it is strictly accountable for stimulus spending. She told Slate last year that she didn't think Obama would necessarily favor moderate judicial picks over strongly liberal ones. Her own motto, from Justice Thurgood Marshall, for whom she clerked, is "remember they're human beings," referring to the people who come before courts. It's akin to Obama's declaration that he is looking for a justice who thinks about "how our laws affect the daily realities of people's lives." (Disclosure: Minow also clerked for the late Judge David Bazelon, who was Emily's grandfather.)

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Lyon, France: Wouldn't Hillary Clinton be a brilliant choice? She has 2 or 3 underlings at State capable to carry on as secretary. My guess is her former Senate Republican colleagues would find it hard to stall and filibuster her nomination. Or am I all wrong on this?

Emily Bazelon: I'm with you--here's what I wrote for Slate this morning:

I didn't support Hillary Clinton's candidacy for president but I think she'd be a rock star of a Supreme Court justice. Clinton has all the makings of a full-throated, strong-minded liberal stalwart on the bench. She's been an advocate for children and for families for as long as she's been in public life. They are in need of as much help as they can get on the court. (Wait for this term's ruling on whether juveniles can serve life without parole to see what I mean.) She knows how to frame ideas for a wide audience, which would help the liberal wing of the court counterbalance the genius rhetoric of Antonin Scalia. She's a celebrity, which means she'll automatically command the kind of attention that a junior member of the court usually does not. She's served as secretary of state long enough to make a graceful exit. She is as former senator, which should win her some courtesy and deference during the godforsaken nomination process-will the Republicans who worked with her personally really throw grenades when they question her? And of course, she brings a weath of real-world political experience to the court. The only knock on Clinton is that at 62, she won't necessarily serve for decades upon decades. But she looks healthy and energetic as ever and I'd trade a few extra years for her mettle and character.

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Right vs Left: We always hear the Stevens is the most liberal member of the court, but how liberal is he, really? He says he's stayed the same and the court moved to the right. Did he used to be nearer the middle of the spectrum of justices? Obviously replacing the most liberal justice with another liberal justice won't shift the balance. What are the odds of Obama getting to replace someone whose not on this side of the ideological spectrum?

Emily Bazelon: There is no "most liberal" member of the court, I'd say. They take turns on different issues. Stevens has been bold on the death penalty and church and state. Ginsburg has taken the lead on sex discrimination and Breyer on race-conscious remedies that seek to rectify past discrimination. Because Stevens is most senior, he more often gets to write the big opinions. And he's been masterful at assigning some of those cases to Kennedy, to get to five, as cobbling together a majority is called.

The odds for Obama replacing one of the five conservatives are low. It's safe to presume that none of them want him to choose their successor. That means it would take an accident or ill health for one to leave--not something to wish for.

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San Francisco, CA: I just finished listening to you on the Slate Political Gabfest, and now here you are! Do you think that Pam Karlan will be talked about this time as she was last summer? I think she would be a fantastic pick. Does it seem like the White House wants to make this one a non-judge?

washingtonpost.com: The Tapestry of Magic Gabfest

Emily Bazelon: Hooray for Gabfest listeners! Yes, I do think we'll hear about Karlan, and we should. She is super smart and gets a lot of love from court observers on the left, including my colleague Dahlia Lithwick. More on Karlan below, from our Slate round up last year:

As founding director of the school's Supreme Court Litigation Clinic, Pam Karlan has helped represent dozens of defendants in criminal and civil rights matters, all free of charge. An expert on constitutional and election law, Karlan has served as assistant counsel at the NAACP Legal Defense and Educational Fund. Karlan has authored three leading casebooks on constitutional law (one of which Obama taught from) and is co-author of a brand new book, Keeping Faith With the Constitution, which offers a progressive theory of jurisprudential interpretation. Karlan confirmed to Politico that she is "counted among the LGBT crowd." Karlan, whose legal writing is both trenchant and prolific, has become something of a rock star on the legal conference circuit.

Karlan has no judicial record to probe, but she has an immense collection of writings. She argued at the Supreme Court in defense of the Voting Rights Act and wrote an amicus brief on behalf of legal academics in the 2003 case Lawrence v. Texas, arguing that laws against consensual sodomy were unconstitutional. She has defended criminal defendants in police search cases at the high court and has been a strong advocate for gay marriage. (Disclosure: Karlan is an acquaintance of Dahlia Lithwick's.)

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Washington, DC: Throughout modern history, the Supreme Court has been a place where significant minorities have been represented. Blacks, Jews, women, hispanics, all have had their justices on the Supreme Court. Yet there has never been a homosexual or lesbian on the Supreme Court. Of the names being mentioned, which potential jurists are homosexual or lesbian?

Emily Bazelon: I'd love to see a gay nominee. As I just noted, Pam Karlan has identified as gay. More on how this does or doesn't play out for other potential picks here: http://www.slate.com/id/2217714/

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Rockville, MD: How is Obama going to get anyone on the court? Even before Stevens's announcements, a Republican senator announced plans to filibuster. My own plan would be to choose a liberal and wait out the filibuster, then choose an even more liberal liberal.

Thank you!

Emily Bazelon: There is threatening to filibuster, and then there is actually doing it. Let's hope for a minute space exists between the two. None of the current justices faced a filibuster--not Clarence Thomas or John Roberts or Samuel Alito (or Scalia or Kennedy) on the right, and not Breyer or Ginsburg or Sotomayor on the left. Obama threaded the needle the last time again--Sotomayor got 68 votes. The country is probably more polarized now than it was last summer, true. But I think tradition and precedent still matter in the Senate.

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Baltimore: Stevens is the sole remaining Protestant on the court. Would being a Roman Catholic be a strike against any prospective candidate for his replacement?

Emily Bazelon: I would say, yes, it might well be. We have six Catholics on the court. Personally, I don't think that matters. They encompass different backgrounds--Clarence Thomas and Antonin Scalia, Kennedy and Sotomayor--these are not the same worlds. (Scalia and Alito are closer). But it does seem strange to leave out the religious denomination that represents the most Americans. So, sure, being Protestant this time around is a plus.

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Gainesville, Va.: Glenn Greenwald thinks the selection of Elena Kagan would be a disaster on the civil liberties front.

On the other hand, Obama shows every signs of wanting to increase the power of the Executive. Do you think there will be some liberal opposition if she were to be nominated?

Emily Bazelon: Glenn is clearly trying to get that liberal opposition going. I think he's making Kagan sound more like a civil liberties hawk than she is. That said, she's not the choice who will get the liberal base jazzed. If you read her academic writings, she seems learned and scholarly and not the person who is leading the charge to move the law three steps to the left.

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Mannington WV: Since Stevens was appointed by a Republican preseident, why wouldn't he time his retirement for when another Republican was a president? Souter did this same thing. Doesn't the person who brought you to the dance matter any more?

Emily Bazelon: This is a choice that's entirely up to the justice who is retiring. We could have a constitution that calls for mandatory retirement or a fixed term (25 years, anyone?) but we don't. For Stevens, who rightly believes that the court has moved to the right, and presumably thinks that's bad for the development of constitutional law and bad for the country, who brung him to the dance apparently matters a lot less than who he'd like to hang with now.

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Virginia: Hello. The Constitution doesn't specify if a law degree is required to serve on the Supreme Court, correct? And is there a deputy chief justice?

Emily Bazelon: correct, non lawyers may apply! And nope--no deputy chief. There are only nine of them after all.

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washingtonpost.com: On Slate now: Who should replace Justice John Paul Stevens? - By Emily Bazelon and Dahlia Lithwick

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Washington, DC: How much of a long shot is Harold Koh (55-year-old, Asian American)?

Emily Bazelon: When Harold Koh was nominated as chief legal advisor to Hillary Clinton's State Department, the right went after him hard. The ridiculous claim made was that he had said--at an event at a country club in Greenwich, I'm not kidding--that he favored imposing sharia law in the U.S. This is false and made up. (I should say right now that Harold was the dean of Yale Law School, where I have a law and media fellowship, til he went into the Obama administration.) The point of the scurrilous accusations, though, was to make him seem toxic as a Supreme Court appointee. Conservatives tried to do the same thing to Cass Sunstein, who also serves in the administration. I hope the White House sets all of this aside in making this Supreme Court choice.

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Oakton, VA: Who is out there who could balance out the likes of Scalia and Alito and stand up to the pounding from the right wing during confirmation?

Emily Bazelon: You know, it is hard to know until we see the person in action on the bench. But there are plenty of strong, forceful liberal stalwarts whose names are in the air--Judge Diane Wood, Harold Koh, Elizabeth Warren, Pam Karlan. I could go on but that's a start.

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Pennsylvania: If Barack Obama serves a second term as President, how good are the chances that he'd get to replace one or more conservative justices? Wouldn't Scalia and Kennedy be getting up in years by 2013-2016?

Emily Bazelon: Scalia is now 74. Kennedy is 72. Stevens is about to be 90! If they are in good health, I'd say they're not going anywhere. But hey really, who knows--this is one choice that is entirely theirs.

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"Chicago" seat: Since Justice Stevens is from Chicago, will Obama feel any extra pressure to nominate Judge Wood?

Emily Bazelon: I like the idea of a Chicago seat, or better, a Midwest seat. But I don't think it's real.

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Lexington, VA: What do you think the age range they will consider for nominees? I wish Walter Dellinger were a possibility.

Emily Bazelon: Yes Walter would be pretty awesome. I'd say that over the age of 60 is a minus. But I hope it's not a dealbreaker because that would mean tossing some excellent candidates. And Justice Stevens sure does stand for excellent senior citizen service on the bench!

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Boston: How about this for a dark horse nominee who may actually be more moderate than one might initially suspect: George W. Bush.

Emily Bazelon: Um, I think Obama's liberal base would march up the steps and tear off the door to the White House.

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New York, NY: How do you expect the near-certain confirmation battle over Justice Stephens' replacement to affect the political discourse leading up to the 2010 elections? How likely is it that abortion, already the focus of so much attention during the recent health care debate and again today with Rep. Stupak's retirement announcement, will again be used as a nationally polarizing issue?

Emily Bazelon: Abortion will surely rear its head. It always does: Unlike same-sex marriage, which polls suggest will not last as a Great Polarizer, since many more young people support it, abortion appears to be here to divide us for the foreseeable future. But the answer in the context of the Supreme Court nomination is: it depends who Obama chooses. This could be a strike against Judge Diane Wood, who ruled against anti-abortion protesters based on a RICO statute. But it's a complicated case that turned on her interpretation of a single word in a statute: More from me on that case here http://www.slate.com/id/2218169/pagenum/all/#p2

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Burtonsville, MD: Which of Stevens' opinions do you think he will be most remembered by? I clearly recall his dissent in Bush v. Gore, but were there others before?

Emily Bazelon: Oh, there are many! His stance on the death penalty has completely changed: He voted to uphold it in the 1970s, but recently wrote the dissent in Baze, against legal injection. He is the author of Rasul v. Bush, one of the early decisions to push back against the Bush administration on Guantanamo. He wrote Kelo, the takings case from New London, Ct., that caused a big backlash. (That's one he told Jeff Toobin he thought the law was clear on in a recent New Yorker profile). And he just wrote a memorable dissent in Citizens United, the campaign finance case this term. Full text here http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x7536905

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Montclair, NJ: For over 30 years, there has been a bow-tie seat on the supreme court. Who can Obama nominate who will be a strong liberal jurist, but also favor embarrassing neckwear?

Emily Bazelon: Doesn't Justice Ginsburg also have this one covered, with that big ruffle she wears with her robes?

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Tampa, FL: I have two questions I hope you might answer:

1. Do the Dems have an organized program to identify and groom smart, young, and healthy judicial candidates as does the GOP?

2. Will Obama choose a nominee that will please his liberal base, one as far to the left as Roberts, Alitio, Scalia, and Thomas are to the right?

Emily Bazelon: Yes, the Dems are getting their acts together on this. Their answer to the Federalist Society, which has done a bang-up job of grooming and mentoring for the right, is the American Constitution Society. You can check it out here http://www.acslaw.org/

I don't know which way Obama will go. There's a political argument for energizing the base before the November elections. And there's also one for reaching out to independents with a more moderate choice, and trying to keep financial reform moving this summer instead of stopping everything in its track with a drawn-out Supreme Court fight. If that's possible in this climate.

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Northern Virginia: We're now at the obligatory speculation phase. Last time around, how heavily was Sonia Sotomayor mentioned at this stage? I really don't know as I don't follow this closely. Was she the obvious choice from the get-go?

Emily Bazelon: Sotomayor wasn't the only much-mentioned name early on last time, but she was probably the top one. Then Jeff Rosen wrote a mean-spirited piece disparaging her, her defenders rallied around her, and she prevailed mightily once she was nominated. I think it's only obvious in retrospect, though.

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Oak Park, Ill.: Why should we really care who Stevens's replacement should be? After all the makeup of the court will remain the same.

Emily Bazelon: It matters. It matters a lot. The court isn't just a place where nine votes get counted. It's a small group of personalities who influence each other over the years. Do you think O'Connor would have taken steps to the left, especially on affirmative action, took without Thurgood Marshall beside her? Granted, she didn't become a big liberal but she did move on that issue and others.

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Washington, D.C.: I expect we'll hear the names Sunstein, Kagan and Granholm. Holder is out, Tribe is too controversial. Napolitano will be mentioned, but not nominated. Liu can't even get on the 9th Circuit. Can you offer us an outside-the-box name, one that doesn't end in "Clinton"? How about Greg Craig? Everyone in Washington seems to love him (except Rahm).

Emily Bazelon: Greg Craig quit the administration, so he wouldn't be my most plausible choice. For more out of the box names--lots more!-- check out these picks we've posted on Slate.

http://www.slate.com/id/2250251/

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Emily Bazelon: wow, that was a great marathon of questions--you tired me out! Thanks very much for writing in and for reading. And just think: It's only the beginning of this year's round of endless Supreme Court speculation!

Emily

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