jpstevens

No sooner did the Supreme Court press office release details about the September 8th formal investiture ceremony of Justice Sonia Sotomayor, than word on the street (Massachusetts Avenue, that is) began to circulate that Supreme Court Justice John Paul Stevens will resign at the end of the Court’s term next spring. Justice Stevens has apparently chosen not to hire law clerks for the 2010 term, hiring only a summer law clerk.

This is the same action taken by recently retired Justice David Souter, which alerted court watchers to the likelihood of his imminent retirement. From the WAPO report:

"He could pick up the phone at any moment and hire first-rate clerks," Eisgruber said. "He may well feel he doesn't know what he wants to do and doesn't want to leave anybody in the lurch" by making the hires and then retiring. Retired justices are entitled to one clerk.

Stevens’ resignation (at age 89) will make the second of what will most likely be three opportunities for President Obama to nominate a justice to the Court. The potential appointment of three Supreme Court justices in his first term will make President Obama among the most powerful Presidents to influence the Court’s direction in decades.

The early 2008 Supreme Court nomination political playbook had it that President Obama’s first pick to fill a vacancy on the Court would be a solidly centrist, but historic nominee, laying the foundation for the selection of a more assertively liberal nominee for the second slot. But the roughing-up given to Justice Sonia Sotomayor, the first Latina Supreme Court justice, by Republicans on the Senate Judiciary Committee this summer may have changed the calculation. In fact, by declining to push back hard against Sotomayor’s strident critics and having permitted the over-the-top attacks on her character without answer, President Obama may have ceded so much ground to Republicans on the Committee that he may feel compelled to select another relatively “safe” nominee, like Solicitor General and former Dean of Harvard Law School, Elena Kagan. She’s someone respected by a number of conservatives for her commitment to hiring conservatives professors at the law school, and the President would still get kudos for expanding the number of women on the Court to three.

On the other hand, by trashing Justice Sotomayor, a sitting federal appellate judge with a moderate record, the Republicans on the Judiciary Committee may have played themselves. Having seen the Republicans behave unreasonabl y towards a middle-of-the-road nominee, the President may feel well within his rights to throw caution to the wind and appoint someone more nakedly liberal. He’s got the votes, and the Republicans have shown they won’t play fair.

--SHERRILYN A. IFILL

is a civil rights lawyer and professor at the University of Maryland School of Law.