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. David

    I'm very excited that Obama has Judge Wood as his top choice - she will be a great Justice and was confirmed unanimously for the court of appeals.

    February 12, 2010 03:29 pm at 3:29 pm |
  2. Sandy

    I voted for Obama last time, but his last Supreme Court appointment made me regret that. He'd better be more careful with this one – people are watching. I think alot of people are not happy over Sotomayer and another appointment like that could come back to bite him in the next election. His popularity is not what it was already.

    February 12, 2010 03:30 pm at 3:30 pm |
  3. Eleanor

    Glenn Koons...

    Just one MORE low information voter!

    Here's a clue by four for ya Glenn...A MAJORITY of the American people voted for a Liberal and Leftist Administration. A MAJORITY is what we have in the House, the Senate, and the White House. They voted that way, because we all saw what damage the Repugnants managed in their 8 years in power. It is interesting that your posting does not consider all these voters as "members of the public". I assure you. We are. We work, we have families, we pay taxes, and we VOTE out those who do a miserable job. See reference above to 8 years of GOP rule.

    The "Pubs" as you call them have NOTHING to offer. Nothing! If they had, they would have won elections instead of losing them. "Stalling" is all they have got. Let 'em stall. We have a MAJORITY. And that, my friend, is what democracy is all about....THE MAJORITY RULES!

    Go back, and re-read your civics lessons...and you'll find that out.
    The only members of the "public" who are "infuriated" by President Barak Hussein Obama are the ones who LOST in November 2008. And they don't even have the good grace to give the man the honor he deserves, which he was given by the MAJORITY of voters in this country.

    Clearly the policies of the "right"...and I use the term loosely...have been BAD for this country...not good. If you want more of the same...then you will just have to wait until the public...the Democratic and Leftist public of this country is no longer in power. And that will probably be, after we have once again fixed all the problems caused by the "Pubs".

    Are you schooled now? Or do you need more?

    February 12, 2010 03:30 pm at 3:30 pm |
  4. Dave in AZ

    Since Obama ran on bipartisanship and scolds republicans for not being moderate, how about Obama follow up his rhetoric with action........... nominate an independent!

    February 12, 2010 03:32 pm at 3:32 pm |
  5. Peter Price

    I think it's clear Obama will pick another woman no matter who retires. There have been over 100 justices and only three have been women. Never have there been more than 2 at once. Time for a change.

    In addition, Wood has got to be the front-runner of the names mentioned. Not only is she strong with liberals, but she's well-respected universally among conservatives as well. She'd be the easiest to confirm in this Senate in an election year. Plus, the Supreme Court doesn't need another Ivy-league Washington insider.

    February 12, 2010 03:32 pm at 3:32 pm |
  6. joe smith

    when you have a birds' nest on the ground, like all the politicos in DC, why retire..the American people are too absorbed in their own lives to really care..what a shame..

    February 12, 2010 03:35 pm at 3:35 pm |
  7. Who said the Mayans were wrong?

    Lets hope the uncleTom retires,his bags should be full by now with corporate cash.

    February 12, 2010 03:35 pm at 3:35 pm |
  8. Donkey Party

    To Glenn Koons and Obama Victim –

    It's too bad your mothers weren't Pro-Choice, maybe they would've reconsidered giving birth if they knew their kids would be as stupid as you two knuckle-dragging droolers are.

    February 12, 2010 03:35 pm at 3:35 pm |
  9. Robert

    One of the perks of actually winning an election for President of the United States is that you get to appoint Supreme Court justices. President Obama can pick whoever he wants within reason. No Harriet Meyers or anything like that, but... within reason as liberal or conservative as he wants. He can be as male and white as possible. She can be as female and asian as possible. It's his pick, so get over it.

    February 12, 2010 03:36 pm at 3:36 pm |
  10. Sam1965

    Funny how conservatives talk now about qualifications but when Bush nominated his cleaning lady nothing was said. Obama won the election, get over it, to the victor goes the supreme court nominations. Just be glad that none of your conservative nut jobs are old enough to retire or have health issues or they would be replaced by a liberal judge as well.

    February 12, 2010 03:36 pm at 3:36 pm |
  11. david from oregon

    doesn't matter. Catering to the extremes has destroyed this country. We are destined to join the likes of Rome and Egypt.

    February 12, 2010 03:38 pm at 3:38 pm |
  12. Myke

    I nominate Howard Stern for the bench!!!

    February 12, 2010 03:38 pm at 3:38 pm |
  13. Donkey Party

    Oops, add Marcus Tate to my last comment. All three are good examples of the messy afterbirth that takes place where an abortion should've.

    February 12, 2010 03:39 pm at 3:39 pm |
  14. Floyd

    The "who's who of insiders and incompetent cronies"? i guess someone missed the nomination of Harriette Meyers

    February 12, 2010 03:43 pm at 3:43 pm |
  15. D.U.T.C.H.

    @ Marcus Tate

    So what do you call Peter Orzag? How about Larry Somers and Geithner? White enough for you. Stop living in the 1940's.

    February 12, 2010 03:44 pm at 3:44 pm |
  16. Marc

    Marcus Tate – Still on the 'SotomayOr (It's with an O dude) is not qualified to be a Justice' issue? Get over it. I don't think that 'spin master' Scalia is qualified either but...
    The point is that Stomayor's resume qualified her to the chair, like Scalia's, Thomas' and Alito's did for them, and to think that the sitting POTUS that has a chance to put someone of his ideologic field in the SCOTUS WON'T gonna do it's like still believing in Abstinence...
    I agree that there should be some sort of term limit to a Justice, and to be honest what are the possibilities that a Justice is forced to retire?

    February 12, 2010 03:46 pm at 3:46 pm |
  17. WeThePeopleofVirginia

    Progressive Vultures circle above the Supreme Court.

    February 12, 2010 03:50 pm at 3:50 pm |
  18. James

    What the H-

    Why does'nt the White House just speak to the Justices and ask if anyone is quitting or retiring.
    WE THE PEOPLE are sick of the games.

    February 12, 2010 03:51 pm at 3:51 pm |
  19. Alex

    Marcus Tate: Don't forget Republican Obama cabinet member LaHood and Bush-appointed Secretary of Defense Gates.

    February 12, 2010 03:55 pm at 3:55 pm |
  20. James

    It;s a wonder they are not all quiting. Especially after Onama Emarrased them and exposed them on National Television.
    And they deserved to be exposed and answer to the American People.
    They need to be removed from office.
    Absolute Power corrupt absolutly

    February 12, 2010 03:57 pm at 3:57 pm |
  21. Jamie from Riverside

    The President of the United States can pick whoever he wants. It's one of the benefits of winning his election.

    I'm laughing at all the right wing nuts snarling about what he'd "better" do.

    February 12, 2010 03:59 pm at 3:59 pm |
  22. OhJeezNotThis%$#@Again

    Marcus – You've shown yourself to be very ignorant. First, SCOTUS justices aren't part of the President's cabinet. Second, anyone who isn't a pathetic, partisan hack could look at Sotomayor's resume and see that's the extremely experienced and is most certainly qualified for the job.

    February 12, 2010 04:03 pm at 4:03 pm |
  23. Bedtime for Obonzo

    Does William Ayers have a law degree? He could bring valuable "diversity" to the bench. Domestic terrorist pals of the Beloved Leader are not adequately represented in the Court's current make up. They might even be called an "oppressed minority."

    February 12, 2010 04:05 pm at 4:05 pm |
  24. klm

    Well you know if the President was a Republican they would go right ahead and appoint a Republican for the Judge position.

    February 12, 2010 04:12 pm at 4:12 pm |
  25. Bedtime for Obonzo

    @ Eleanor. Little bit plucky and self righteous today, are we? Never fear, the Beloved Leader will select a nominee who represents the greatest possible demographic segment of the leftist voting public. That's identity politics for you.

    February 12, 2010 04:13 pm at 4:13 pm |
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