February 12th, 2010
01:57 PM ET
4 years ago

White House prepping for possible high court vacancy

The White House has begun quiet preparations for the possibility of a Supreme Court vacancy in coming months, government sources tell CNN.
The White House has begun quiet preparations for the possibility of a Supreme Court vacancy in coming months, government sources tell CNN.

Washington (CNN) - The White House has begun quiet preparations for the possibility of a Supreme Court vacancy in coming months, government sources tell CNN.

Top officials have no specific information that a particular justice will retire after the court's session ends in late June, but want to be ready for a variety of contingencies, those sources emphasized. They requested anonymity because they are not authorized to speak on behalf of the administration.

Most of the speculation surrounds Justice John Paul Stevens, who will turn 90 in April and is the oldest of the nine-member bench. CNN had previously reported Stevens has so far hired only one law clerk for the October 2010 term. Sitting justices may hire a full complement of four; retired justices are allowed one.

Sources close to him say the Chicago native has given no clear indication of his plans. One longtime colleague said Stevens has neither "encouraged nor discouraged any talk about his possible retirement, and has actually been amused at all the attention" his future has generated in news reports and blogs.

Another source who recently spoke privately with Stevens said the justice wondered what all the fuss was about over his law clerk hiring, and said that, given his age, it didn't make sense to plan too far into the future. That source said Stevens told him he wasn't going to be rushed into making retirement decisions.

Those sources asked not to be identified because they are not authorized to speak for Stevens, who himself has refused public comment.

A high court vacancy this year would give President Barack Obama another chance to leave his legacy on the federal judiciary. He nominated Justice Sonia Sotomayor last year, putting the first Hispanic on the court.

Cynthia Hogan, Vice President Joe Biden's chief counsel, headed the day-to-day vetting and confirmation process for Sotomayor, and government sources say she would likely play the lead role again if a Supreme Court vacancy occurred.

She also sat just behind Sotomayor during the justice's July confirmation hearings before the Senate.

Obama's new White House counsel, Bob Bauer, also is likely to serve a key liaison role in handling any upcoming vacancy, given his long political experience working as an adviser to several Democratic lawmakers.

Sotomayor replaced David Souter, who announced last May 1 he would step aside after nearly two decades on the court. Those sources said that several days earlier he had discreetly given the White House notice of his plans, giving Obama's staff plenty of time to screen a list of top-level candidates.

Four women made a list of finalists who were personally interviewed by Obama, among them Sotomayor, 56.

The other three remain in the mix for any upcoming vacancy. They are:

–Solicitor General Elena Kagan, 49, who has no judicial experience but has impressed the White House with her skill arguing a range of important cases before the Supreme Court as the government's top appellate attorney.

–Judge Diane Wood, 59, of the Chicago-based 7th Circuit U.S. Court of Appeals. Many administration insiders believe she would be a strong intellectual force on the high court, where the newly emboldened conservative justices have achieved recent victories on campaign finance reform and gun rights.

–Homeland Security Secretary Janet Napolitano, 52, a target of criticism in December over the administration's public response to the attempted bombing by a lone terrorist aboard a Detroit-bound airliner.

One source said if Stevens were to retire, there would be less political pressure on Obama to name another woman to the court. Souter's exit led to universal agreement inside the White House that a woman should join Justice Ruth Bader Ginsburg, then the lone female on the court.

Among male candidates would be a Washington-based federal appeals court judge, Merrick Garland, 58; and Cass Sunstein, 55, an old law school associate of Obama and head of a key White House agency.

Massachusetts Gov. Deval Patrick, 53, a longtime friend of the president, is another name favored by some insiders, but he has announced he will seek re-election this fall to his current job. California Supreme Court Justice Carlos Moreno, who was given serious thought for the Souter vacancy, would no longer be considered a leading candidate, observers say.

Advocacy groups believe there will be a high court vacancy this year, and have already sounded the alarm on the political and social stakes.

"If in fact Justice Stevens is stepping down, he's been a major strategist and tactician on the he court," said Nan Aron, president of the left-leaning Alliance for Justice. "The president should start putting together a list of names of individuals who can begin to change the conversation on the court and assert a leadership role." Aron cited Judge Wood as someone with a long record of taking strong stands on a variety of key issues.

Liberal activists have generally applauded Sotomayor's history-making elevation to the high court, her inspiring story and reliable progressive votes so far on the bench. But many say despite her clear qualifications, she and other liberals on that court lack the rousing rhetorical and philosophical firepower that conservatives find so appealing in Chief Justice John Roberts and Justice Antonin Scalia.

And allies on the right seem confident that in an election year filled with several legislative challenges, Obama could have a much harder time choosing a high court nominee with a clear liberal portfolio.

"The burden of proof is clearly on the White House with any future Supreme Court nominations," said Gary Marx, executive director of the Virginia-based Judicial Crisis Network. "It was assumed on the last go-around that it would be more of a rubber stamp" with Sotomayor winning easy confirmation. "But we're in an entirely new world politically. Obama, I think, wants to take a more aggressive posture, and continue to appeal to his liberal base with the next court nominee, but the Democratic Senate may decide it's not in their best interest to hitch their wagon to the president."

One legal source who was deeply involved in the vetting process for Sotomayor cautioned against Obama picking what was termed a "liberal Scalia," saying "it could derail the president's entire agenda, by picking a fight over ideology. Very much in line with his philosophy of picking qualified, thoughtful judges, the president was extremely successful naming Judge Sotomayor last year. I'd expect him to follow that same path, if we get something this year."

One sign of encouragement for Democrats was the president's strong tone dressing down high court conservatives in his recent State of the Union address. Obama criticized the majority's ruling giving corporations greater power to spend their money in federal elections. Justice Samuel Alito, sitting in the audience, shook his head at Obama's remarks, apparently mouthing the words "not true."

Ginsburg's name has also been floated as a possible retirement this year or next. She underwent pancreatic cancer surgery last year and has had some minor medical incidents since. But Ginsburg, who turns 77 next month, has reported her health is fine, and is spending this week traveling with two court colleagues in Luxembourg for a judicial conference.

She has told friends she has no intention of leaving the job anytime soon.


Filed under: Popular Posts • Supreme Court
soundoff (73 Responses)
  1. Glenn Koons

    This radical socialist pacifist will pick someone who will not be good for America. You can bank on it. The Pubs ought to stall as much for any pick. This naif in the WH is an avowed leftist and any pick will try to expand the Federal Govt's power without any stoppage. More liberals on SCOTUS, even if supplanting Stevens or Ruth Bader is just bad for the nation. The public might just be infuriated by any choice this dunce makes because they know he is not helping America on any level. Except for the Left.

    February 12, 2010 02:03 pm at 2:03 pm |
  2. Jane/Seattle

    We must all hold contingency plans! Like plane crashes, car wrecks and the like which increasingly could happen to anyone. Life is so high speed, ya know. So, Yes, most of these folks on the Supremely
    "Activist" Court need to retire. Their collective unlawful decisions based upon a court clerks side note are accelerating America's Fascist destruction. Such a stubborn refusal to face realities are defining this rapid Decline of the Empire that values money over human and other life forms! Peace is the only way!

    February 12, 2010 02:14 pm at 2:14 pm |
  3. Objective Thinking

    Half posters bashing Obama and the other half bashing Republicans in 3... 2... 1...

    February 12, 2010 02:14 pm at 2:14 pm |
  4. greenfish

    In the summer of 2008 I was commuting home and noticed the man next to me was reading the Constitution. He said (and I agreed) that there really isn't much of a difference between dems and republicans, except when it comes to Supreme Court appointments. He was voting for Obama, as did I.

    The Supreme Court matters: ask Lily Ledbetter.

    February 12, 2010 02:18 pm at 2:18 pm |
  5. D.U.T.C.H.

    If the President chooses another Justice candidate, it will be Judge Diane Wood.

    February 12, 2010 02:18 pm at 2:18 pm |
  6. Snerdly, the invisible token

    Lets just put the CEO of ExxonMobil in there and get the corporate fascist takeover over with.

    February 12, 2010 02:22 pm at 2:22 pm |
  7. cjr

    obama will have one -possibly two appointments. He will have the ability to set the tone of the court for a long long time – He will make the right decision the justices tend to become more liberal the longer they serve on the court -I would like to see more minorities on the court = women, asians, african americans. indians etc. enough old conservative white guys . their days are over and the sooner the better.

    February 12, 2010 02:22 pm at 2:22 pm |
  8. montag

    Why would a retired Supreme Court justice need a law clerk?

    February 12, 2010 02:23 pm at 2:23 pm |
  9. Michael Shea

    If Stevens leaves the high court, I would support Janet Napalitano as the likeley replacement. I wanted President Obama to name her last time.

    Napalitano is a distinguished constitutional attorney. She served as US Attorney to Arizona under Bill Clinton. Janet was also Attorney General in Arizona for one term and was elected twice as Governor in Arizona.

    Napalitano is fair, seasoned and personable. She is very down to earth and has a great sense of humor.

    Although she leans to the left, she is very deliberative with her decision making and is open to advice form both sides.

    I believe that the supreme court and this country would be well served by Janet Napalitano as our next Supreme Court Justice.

    February 12, 2010 02:23 pm at 2:23 pm |
  10. Gale

    NO one needs to be a Supreme Court Judge at the age of 90!!

    February 12, 2010 02:26 pm at 2:26 pm |
  11. Albert R., L.A., CA

    There should be five vacancies resulting from an impeachment of the five Global corporate sympathizers on the Court who have just committed a national security high crime by acting under color of authority to facilitate global corporations with ability to interfere with our elections and lawmaking with unlimited cash bribes.

    February 12, 2010 02:28 pm at 2:28 pm |
  12. Obama Victim

    great...another left wing crazy on the court..as if the country is not in enough trouble.....let's kill some more babies...yeah, that will help

    February 12, 2010 02:36 pm at 2:36 pm |
  13. buckeye

    American democracy cannot survive this aristocratic institution. Scrap the life-long appointment and institute mandatory retirement at, say, 75 or the failure of a driver license test, whichever comes first.

    February 12, 2010 02:42 pm at 2:42 pm |
  14. c spurgeon

    It really doesn't matter as an Obama Pick would not change the mix of the court...

    February 12, 2010 02:44 pm at 2:44 pm |
  15. gt

    know one is more far left than stevens,,,

    February 12, 2010 02:46 pm at 2:46 pm |
  16. Independent

    The Supreme Court should reflect "ALL" of America's views not just men or one particular party. Let's face it the Supreme Court has been ULTRA CONSERVATIVE and we now see the results....CORPORATE INFLUENCE. I am like many Americans who are in the middle of every issue. I am tired of the left and the right. The Supreme Court and Congress should not have one view to speak for millions of people. The court can no longer be LIBERAL or CONSERVATIVE...it must represent the majority of Americans who fall right in the middle. By the way how about rewriting the laws for TERM LIMITS for anyone in Gov't service!!!

    February 12, 2010 02:49 pm at 2:49 pm |
  17. Obama mama

    Yes, this administration is doing everything they can to push their ideology and agenda.

    Their last nominee wasn't the most qualified, but made for great PR (and highlighted a voting block). I'm scared to see who else they're planning on seating.

    February 12, 2010 02:49 pm at 2:49 pm |
  18. William

    Why such fan fare over who could replace this man. When Bush made his appointments, the only criteria was that he be as conservative as possible. That all but elemintates have the field. If we could but once elect or appoint someone based upon their character and sense of fairness rather than their political leaning, we would do well.

    February 12, 2010 02:55 pm at 2:55 pm |
  19. Fair is Fair

    Thank God it appears to be a liberal.

    February 12, 2010 03:00 pm at 3:00 pm |
  20. Bunker

    its a who's who of insiders and incompetent cronies. No surprises there. POTUS forbid that a judge actually be picked on their merits and ability.

    February 12, 2010 03:09 pm at 3:09 pm |
  21. Bob

    I mean nine, had my mind on something else.

    February 12, 2010 03:10 pm at 3:10 pm |
  22. Marcus Tate

    I am still VERY disappointed and angry over Obama's last pick. I am almost afraid to think who or what he might appoint this time.

    Obama and his staff made up their mind as soon as there was an opening last time that they wanted a female, and then they decided it would be great to have a Hispanic female, so they could pander to the Hispanic vote. So they went out and found a Hispanic woman, regardless of qualifications and without considering any other candidates. That, my friends, is the definition of racism. And we have not forgotten.

    In fact, Obama has made 3 appointments so far – and they have been a White woman (Clinton), a Black Woman (Benjamin), and a Hispanic woman (Sotomeyer). Guess men can't hold office in his cabinet, especially not white men.

    February 12, 2010 03:16 pm at 3:16 pm |
  23. C. Farrell, Houston, Tx

    I hope and pray it's Justice Clarence Thomas, the sooner he's gone the better.

    February 12, 2010 03:17 pm at 3:17 pm |
  24. Snerdly, the invisible token

    We nominate "Rush the Mushmouth" for his unwavering support of Corporate Fascists and the final solution to all our problems.

    February 12, 2010 03:22 pm at 3:22 pm |
  25. Anonymous

    I am hoping that at least one of the not-so-fab-five leaves soon. I think it's time that progressive minds took over. The latest decision on Corporations and Lobbyists is a PRIME example.

    February 12, 2010 03:27 pm at 3:27 pm |
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