Monday, September 14, 2009

Obama almost surely will get another Supreme Court pick in Spring 2010

This isn't economy-related but its pretty big news and I'm surprised more people aren't talking or writing about it.

Did anyone else catch this past weekend's The Chris Matthews Show (the Sunday morning political round-table on NBC affiliates, not MSNBC's Hardball)?

A few weeks ago, around September 2nd/3rd, there was a lot of speculation in the media about whether or not U.S. Supreme Court Justice John Paul Stevens was getting ready to retire soon. At that time, it was announced that Stevens had only hired one law clerk for 2010, instead of the usual four, which many interpreted as a sign that 2010 would be his last year on the court.

On The Chris Matthews Show, panelist Howard Fineman (Newsweek's Senior Editor and Chief Political Correspondent) made it clear that the rumors are true: Stevens is almost definitely going to retire in the spring of 2010. Here's the excerpt from the show transcript:
Mr. FINEMAN: There's been talk that Justice John Paul Stevens may retire. I'm told by former clerks of his that it's definite, that by next spring he'll announce that he's leaving, which means that Barack Obama will have more research to do about somebody else to appoint. [1]
Fineman published an article today on Newsweek's website that further verifies this. He writes:
Though there are no sure things in life or judging, Stevens's legion of former clerks are convinced that he will in fact retire late next spring. Stevens is known as particularly punctual and exacting about lining up new clerks early in the year. The fact that he did not do so is a certain indication that he will step down, one of his former clerks told me this week. "There is NO WAY he would go into next year without the full group," said this clerk, who spoke on background out of respect for court tradition and the behind-the-scenes role of clerks. Another former clerk, speaking on the same condition, agreed."He's still vigorous and I think he wants to leave the court that way," this clerk told me. [2]
So there you have it. It looks like Justice John Paul Stevens will announce his retirement next spring and President Obama will get to appoint another Supreme Court Justice.

Stevens is without a doubt a member of the 'liberal wing' of the Supreme Court so President Obama's appointment is unlikely to fundamentally alter the ideological makeup of the court.

However, if Stevens does announce his retirement in the spring it will be at the beginning of the 2010 midterm election cycle. That means his retirement will almost surely have significant political importance and we could see quite a heated political battle. If President Obama's popularity keeps slumping or if Obama loses out completely in the healthcare debate then conservatives will certainly feel emboldened and will politically press for, at least, a Justice who is more conservative than Stevens was. If someone like Justice Anthony Kennedy (who is currently the sole swingvote between the liberal and conservative wings) gets nominated then that will almost surely be seen as a conservative victory. Liberals will fight hard to hold their ground on the court and President Obama will have to make sure and appease them to some degree lest his support among his base constituency further erode.

So who's being seriously considered by the White House? I certainly don't know so I defer to the opinion of Mr. Fineman, a D.C. insider who clearly has connections in the Court. Fineman (among many others in the media, actually) mentions Harold Koh, a Legal Advisor to the State Department and dean at Yale Law School, in his article. He served in various forms under the Clinton and Reagan administrations and was a clerk for former Justice Harry Blackmun (who was appointed by President Nixon and started out as a conservative but latered authored the Roe v. Wade decision). David Bernstein, a conservative law professor at George Mason University, wrote that Koh is a "highly partisan Democrat" but the Yale Conservative Law Students group responded by writing that "Dean Koh has been very supportive of conservative students and conservative student organizations." [3] Koh, who is of Korean ancestry, would be the first Asian-American to serve on the Court.

Mr. Koh is just one possible candidate, albeit a strong one considering the media buzz surrounding him.

Other possibilities that have been mentioned by the media include:
*Diane Wood
*Merrick B. Garland
*Elena Kagan
*Cass R. Sunstein
*Jennifer Granholm
*Janet Napolitano

... among many, many other possible candidates ... there is no real way to predict this, this early. Regardless, it looks like 2010 be a big year politically (and economically! as readers of my blog know).


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