Justice John Paul Stevens announced his retirement from the U.S. Supreme Court in an April 9 letter to President Barack Obama, prompting Senate Democrats and Republicans to gear up for a tough confirmation battle that may include some nominees with Massachusetts ties.
The successor to Stevens will be the second justice appointed to the Supreme Court by Obama, after his nomination of federal appellate Judge Sonia Sotomayor 11 months ago to fill the post of former Justice David Souter. The three names most widely circulated as a replacement for Stevens include federal judges Merrick Garland and Diane Wood, as well as Elena Kagan, the U.S. Solicitor General.
Stevens and Souter were both considered liberal justices despite their appointment by a Republican president, making it unlikely that Obama’s pick will change the disposition of the court.
Still, legal scholars and political advocates say Stevens, who has been a justice for nearly 35 years, will be difficult to replace.
“At the start [of his tenure] he was a moderate Republican with some idiosyncratic views,” said Mark Tushnet, a Harvard Law School professor who specializes in constitutional law.
But as the court became more conservative over time, Stevens emerged as “a strategic and intellectual leader of what was left of the liberals on the court” who was skilled at persuading wavering justices over to his point of view, Tushnet said.
“It’s definitely going to be a blow to the liberals,” said Hannah Brown, the campus progressive coordinator for the Boston University College Democrats and a freshman in the College of Communication, said. “He comes from a time when Supreme Court justices weren’t nominated for ideological reasons, but for their ability to do the job well.”
“He will be very difficult to replace because of his ability to strike deals and work with court members of all creeds,” said Matthew Stern, BU College Republicans secretary and a junior in the College of Arts and Sciences. “On President Obama’s “short list’ there are now a reported 12 potential nominees and this large number of possible contenders serves to justify the difficulty in finding a replacement fit to fill Justice Stevens’ shoes.”
Many of the potential nominees have connections to Massachusetts. Both Garland and Kagan were once employed by Harvard Law; Garland taught anti-trust law and Kagan is the former dean.
Kagan, who at 49-years-old is one of the youngest names in consideration, had a “deft political touch” at Harvard, Tushnet said.
“She knew how to explain to a variety of people with a wide range of views why what she thought was good for the school was also going to be consistent with what they thought would be good for the school,” said Tushnet, who was appointed to Harvard faculty by Kagan.
Despite this record, Tushnet said he didn’t believe she is as moderate a figure as some commentators think.
“I don’t think the view of her as relatively conservative is accurate. She did clerk for [former Supreme Court Justice] Thurgood Marshall. Her job as dean required her to be accommodating, but requirements as justice are different,” Tushnet said. “People may be over-reading her prior positions and projecting them into the future when she would be in a different position.”
Garland, who is also a Harvard graduate, has served as a clerk for former Supreme Court Justice William Brennan and as the U.S. Associate Deputy Attorney General. He is considered a moderate pick by many observers.
Massachusetts Gov. Deval Patrick also was named in news outlets as a possible nominee, though he told multiple news outlets that he would not take the position if offered and instead will concentrate on his reelection campaign.
