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

White House prepping for possible high court vacancy

[cnn-photo-caption image= http://i2.cdn.turner.com/cnn/2010/images/02/12/art.scotus.classphoto.3a.gi.jpg caption="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. Tom from Riverside

    Actually, Jamie from Riverside, the President CAN pick whoever he wants-but that person must be confirmed by the Senate.

    There are a lot of Democrat Senators up for re-election this fall who could tip their re-election to their opponent if they vote to confirm a left wing nut to the Supreme Court.

    February 12, 2010 04:13 pm at 4:13 pm |
  2. Jon

    Eleanor – you are an idiot, why don't you go back to school.

    A majority of Americans voted for Obama because they wanted change from the Bush Admin not because he was liberal. Obama rallied the nation on centrist ideas without divulging the details of healthcare or governmentcare and energy policies such as cap and trade. Now that nation has seen the details of Obama's policies they have voiced their opinion in electing Sen Brown in the most liberal state as well as republican governors in recent elections. Oh and by the way the downfall of the economy began in the Clintion Admin when they pushed banks to loosen standards and lend to those who can't afford houses. Oh and Barney and Dodd who oversaw the regulations of fannie and Freddie are democrats. Bush was just to ignorant to get on the democratic controlled congress.

    February 12, 2010 04:15 pm at 4:15 pm |
  3. L for Legend

    Let it be Clarence Thomas!!!!

    February 12, 2010 04:18 pm at 4:18 pm |
  4. Dar

    The supreme court, congress and senate should be even as to make the system work properly. Half Dems and half Repub's so their is no majority.
    Odumbo should look and see which side is out of balance and make the best choice he can, left or right. I know that wont happen but it would be the right thing to do. Just my thought.

    REAL Change is coming

    February 12, 2010 04:19 pm at 4:19 pm |
  5. coreywalker

    glenn other colors of people are qualified.not just your color.thats what wrong with this world now.

    February 12, 2010 04:22 pm at 4:22 pm |
  6. ib

    Obama is hoping to put a far left liberal on the court to help him to finish taking gov. controll over our lifes. Do away with what little freedoms we have left.

    February 12, 2010 04:22 pm at 4:22 pm |
  7. Steve (the real one)

    News flash! Liberal justices wait for liberal presidents so they can be replaced by a liberal justice. The same goes for the conservative justices. Hence, it WILL NOT be Justice Thomas! I will venture to say Justice Stevens!

    February 12, 2010 04:23 pm at 4:23 pm |
  8. Steve (the real one)

    Eleanor February 12th, 2010 3:30 pm ET
    Here's a clue by four for ya Glenn...A MAJORITY of the American people voted for a Liberal and Leftist Administration
    True that BUT you have failed to mention many independent voter (Obama woud have NEVER won without them) now have buyer's remorse! He is tanking with the independents!!

    February 12, 2010 04:28 pm at 4:28 pm |
  9. J.Williams san diego

    the only court Napolitano is going to see is after they ship her to Gitmo for dereliction of duty. or just plain incompetence.

    February 12, 2010 04:42 pm at 4:42 pm |
  10. SA

    It is amazing to see how out of touch you libs still are. Your day is over. It lasted a year.

    It is clear to America that liberals cannot be trusted with power!

    It is a shame that the soon to be most unpopular and unsuccessful President in US history will have another shot at the Supreme Court. It really is a shame he will have any lasting effect on the country at all.

    Voters are doing their best to neutralize the damage done in the 2008 election. It was clearly the biggest mistake America ever made. It may be whoever Obama nominates will just be stalled off by the voters and both Dems and Repubs until we can get competent leadership back in the Whitehouse.

    At this point we just need to keep the idiot from making any lasting decisions at all. Can't wait to finally shut the lefties up for the next generation in 2012. That's one thing Obama gave us. The left will not be trusted with power again in our lifetimes.

    February 12, 2010 04:42 pm at 4:42 pm |
  11. David

    Imagine THIS scenario: Sarah Palin as a Supreme Court Justice.
    Excuse me while I go recover my senses! Did I really write that? But the Tea Baggers would be dancing, the whole dumb and undereducated lot of them. They all love Palin because she's as dumb as they are, and they would just love to see a dumb person who they can identify with appointed or elected.

    February 12, 2010 05:01 pm at 5:01 pm |
  12. Hows that Toyota workin for ya?

    Lets put a real American in there,like a native American with an ax to grind.

    February 12, 2010 05:01 pm at 5:01 pm |
  13. veritas

    Attention all you loud right wing extremists that are members of the "American Taliban". You guys lost ,and you are in the minority no matter how loud and anti- American you get. The bad news for the Dems is Palin's 76% negative approval rating. What a perfect candidate she would bein 2012 for you fools!

    February 12, 2010 05:08 pm at 5:08 pm |
  14. S.B. Stein E.B. NJ

    How do you conservatives think that this country got started? It was people who we would consider liberal that started the country. It will be a good day when Thomas leaves the court since he never had the true understanding to be a justice.

    February 12, 2010 05:09 pm at 5:09 pm |
  15. thisguy

    Most of these comments are ridiculous. What liberal takeover?

    February 12, 2010 05:17 pm at 5:17 pm |
  16. Socialism...keeping police/fire stations, roads, justice system and the military out of the hands of Capitalists

    @ Glenn Koons,

    Do yourself a favor. Read my screen name. Look up the definition of socialism and communism. Then see if you can make the connection.

    You should also look at the difference between capitalism and democracy and try to make a proper anology with socialism and communism.

    February 12, 2010 05:18 pm at 5:18 pm |
  17. Robert

    I just hope his next pick will be to replace Scalia...

    After that Thomas, Alito and Roberts would be nice to see gone...

    Yes, I'm a liberal. Get over it.

    February 12, 2010 05:18 pm at 5:18 pm |
  18. Marie MD

    Koons (is that name some sort of pun)?
    You have probably have no idea what a socialist is. Maybe you should spend more time researching the subject and less in dumb posts.
    It's unintelligent and uneducated people like you who think that a Harvard graduation is a dunce.
    Then again, you might have spent a lot of time sitting on the corner in school looking at the wall.
    The shrub was more of a dictator than Obama will ever be a socialist.

    February 12, 2010 05:18 pm at 5:18 pm |
  19. common sense

    I find many of the posts almost as humorous as they are idiotic, especially all of the cute Obama nicknames like "Odumba". Did the undereducated posters on the right actually miss the fact that the president is actually an extremely intelligent person? (quite the opposite of GWBush, by the way, whom they seemed to adore).

    Politics truly do blind...

    February 12, 2010 05:26 pm at 5:26 pm |
  20. Arvid

    Obama should stand up and pick a new liberal scion to replace Stevens. - Wood , Sullivan, or Karlan.

    He needs to call the republican bluff and have them filibuster - like Shelby trying to get a defense contract awarded to Airbus - so jobs go to Alabama, all the profits go to Europe. Let s hear Sessions try to explain why he's not a bigot.

    February 12, 2010 05:30 pm at 5:30 pm |
  21. Zach K

    I knew this day would come. I love Stevens and his work on his bench, but we all grow old, and Stevens should start thinking about his retirement.

    Obama needs to act quickly. The Supreme Court should NOT tilt back to the right. Social Issues WILL be at risk if nothing is done.

    February 12, 2010 05:36 pm at 5:36 pm |
  22. Marcus Tate

    White men vote, too. And there are more of us than there are of YOU...

    If Obama wants to keep being stupid, he can watch a Republican take the oath of office in 2012....

    February 12, 2010 05:43 pm at 5:43 pm |
  23. Baby Boomer

    90 years old... Really??? Really??? I know these are life time appointments but wow. We would turn much of anything in the country over to a senior in their 90's these days yet we have a Supreme Court full of folks well past the nations retirement age. Come to think of it, the Senate and Congress is full of them too. Hell, I'm in my early 50's and sometimes I'm not as sharp as I need to be. I can only imagine. I think President Obama will have to be prepared to replace a couple more justices before it's all said and done.

    February 12, 2010 05:51 pm at 5:51 pm |
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