Speculating on Speculation over Justice Stevens’ Replacement

Apr 8, 2010

By Kristen Friend, staff U.S. Supreme Court writer – April 8, 2010

The Supreme Court did not issue any opinions this week, choosing instead to issue orders and refuse to hear a series of appeals. Without any precedent setting landmark decisions, the big news this week revolved instead around a speculative frenzy over the potential retirement of Justice John Paul Stevens. On Monday, the Supreme Court issued the series of orders that declined to hear any new cases at this time. The most widely discussed of these is Al-Turki v. Colorado, a case involving jury bias. Homaidan Al-Turki, who was convicted of the sexual assault of his housekeeper, appealed his conviction because one of the jury members admitted to a potential bias against the Muslim faith. The defense attempted to question the juror about his views and bias, but the judge refused to allow the juror to be challenged. By refusing to hear the case, the Supreme Court allowed the conviction to stand and upheld the State’s standard that a juror could not be questioned unless he or she exhibited “unequivocally an actual bias.” [1] The Court also refused to hear a case involving damage claims against the US government by residents of the Marshall Islands who were removed from their homes and whose property was destroyed during years of atomic testing, thus essentially shutting down all claims. And, Justices dodged the issues of religious bias in the workplace, warrantless entry into a drunk driving suspect’s home, and the ability of US citizens to sue foreign corporations in injury or wrongful death cases. [1]

The Supreme Court is scheduled to begin hearing arguments, and likely issuing orders, on April 19th. And, according to the Supreme Court schedule on SCOTUSblog, opinions are not likely until the 20th. Congress is also in the middle of a two-week break and will be back in session on Monday, April 12.

With both Congress and the Supreme Court enjoying spring recess, what is a politician, pundit, or policy wonk to do?

Possibly one of the most popular ways to while away the time on a slow news day is speculation. Everyone can speculate, and it can even be fun. Did you hear there is already a short list of candidates to replace Justice Stevens – the Justice who is thinking about maybe possibly retiring sometime soon? That is, of course, unless he takes Arlen Specter’s advice and waits awhile. [2] Will it be this year? Next?

Stevens, who turns 90 this month, has long been rumored to be the “most likely to retire” of all Associate Justices. This rumor was put into overdrive this week, when an interview with Jeffrey Toobin, Stevens said, “You can say I will retire within the next three years.” He then continued by saying he would most likely make a decision within the month. [3] It is no surprise to those familiar with Justice Stevens and his judicial philosophy that he would choose to retire during the term of Democratic president. His three year window is, to say the least, unsurprising.

Another good, wholesome spring break activity, led this recess by Republican Senator Jon Kyl, is rallying around a good partisan threat. Appearing on Fox News, Kyl did everything but threaten a filibuster of the nominee who may be, saying he hoped Obama would avoid nominating anyone too “ideological.” The filibuster is not a weapon Republicans want to use, according to Kyl, but it is, of course, not one that is completely off the table either. [4]

Kyl isn’t new to this type of preemptive filibuster of not-yet-nominated Justices. In 2008, just days after President Obama was elected, and well before anyone had announced a retirement, Kyl, at a meeting of the Federalist society, said that if the President were to nominate an individual with “empathy” that person may face a filibuster. [5]

Judging from the already large volume of articles, speculation and response to Stevens’ comments, it looks like we might be facing another hyperbole-filled nomination showdown fanned by the fire of intense pundit speculation and inevitable Senatorial political posturing. Stevens’ announcement has unleashed what Slate has called a journalistic “pie-eating contest” in which every scrap is gobbled up and journalists “speculate to the breaking point.” [6]

As a service to our readers, as we collectively select the next Supreme Court nominee in anticipation of the Real Thing, I would like to offer a brief guide to the buzzwords most likely to be used during the coming wait for an official retirement and Presidential nomination.

Qualified. Qualified is a tricky word, being by definition, subjective. The Constitution does not set qualification standards for Supreme Court Justices; the President can nominate pretty much anyone he wants. Some presidents choose to nominate attorneys who have served on the bench, and some do not. Whatever the experiences of the nominee, barring the George W. Bush Harriet Meyers debacle of 2005, generally Presidents are careful to pick extremely qualified candidates.

During nomination hearings, much is often made of the rating handed down by the American Bar Association Standing Committee on the Federal Judiciary, which rates nominees as “Well Qualified,” “Qualified” or “Not Qualified.” The general consensus is that a “Well Qualified” is a positive statement about the nominee’s ability to perform as a Justice. (Unfortunately, the rating may hold more weight with Senators who agree ideologically with the nominee.)

This brings us back to Senator Kyl’s thinly veiled warning to President Obama about the ideological proclivities of his potential nominee. According to Kyl, “I think the president should nominate a qualified person. I hope, however, he does not nominate an overly ideological person. That will be the test…” [14] This statement implies that there is some link between nominees not being “overly ideological” and also being “qualified.” What, exactly, is the test? It seems in Senator Kyl’s case to be the ideology, not the qualifications borne from intellect and experience.

Judicial Activism. The term judicial activism, and its sister, judicial restraint, are used in such excess that they have become almost completely devoid of meaning. In theory, judicial activism refers to the act of interpreting law according to political beliefs rather than the original intent of the law. But the original intent of whom? The law according to whose point of view? You may be noticing a theme here, but the concept of who is and is not a judicial activist strongly depends on the perspective of the accuser. Judicial activism has become little more than a fancy way of saying “one who does not agree with me.”

Whomever President Obama picks when the time comes will most likely be considered a judicial activist by around thirty percent of the Senate, regardless of political philosophy or judicial record. Keep in mind some of these will inevitably be the same Senators who happily voted for Chief Justice Roberts, whose membership in the Federalist Society was supposed to ensure his judicial restraint. Roberts now leads a court accused of being one of the more “activist” courts in recent history, [7] particularly after its decision in Citizens United. It was Roberts who decided to hear the case on broad First Amendment grounds instead of the original narrow grounds upon which it was brought. The resulting decision overturned multiple precedents and flew in the face of nearly a century of American political thought.

Up or Down Vote. This is an unnecessarily lengthy way of saying “majority rules,” which, historically, it has. No Associate Justice has ever been successfully filibustered, so to do so would break with, well, the entire history of the United States. [8]

We have all heard this term ad nauseum, so a brief explanation will do. A Senator who cries “up or down vote” is essentially saying, “Stop your filibuster threats and let’s decide this with a simple majority.” Only about 26% of Americans know that it takes 60 votes to break a filibuster, [9] so this is a handy rhetorical trick used by supporters of a nominee to explain the injustice of a filibuster – at least from their point of view.*

Pay close attention to Senator Jeff Sessions, who argued in 2005 that, “Since the founding of the Republic, we have understood that there was a two-thirds supermajority for ratification and advice and consent on treaties and a majority vote for judges. That is what we have done. That is what we have always done.” [10]

Will that standard apply to Obama nominees? Speculation may be the name of the game, but we will have to wait and see.

And not to pick on Jon Kyl, but the now filibuster threatening Arizona Senator also said in 2005, “Many of our judges and, for example, Clarence Thomas, people might recall, was approved by either fifty-one or fifty-two votes as I recall. It has never been the rule that a candidate for judgeship that had majority support was denied the ability to be confirmed once before the Senate. It has never happened before. So we’re not changing the rules in the middle of the game.” [11]

*It is important to note that in terms of Health Insurance Reform, an up or down vote, decided by a majority, is also a way of cramming legislation down America’s throat. [12] Will we hear accusations of cramming Justices down our throats? The comedy writes itself, but hopefully the debate will not degenerate to that point.

The Short List. The short list is one item that, magically and without any confirmation from the administration, most pundits agree upon. Although, in fairness, two of the names were floated before the nomination of Justice Sotomayor. The short list of nominees consists of the top three, Solicitor General Elena Kagan, and federal appeals court judges Diane Wood and Merrick Garland. Judge Wood is accused by some of being the most liberal and therefore the most likely to provoke a fight. [13]

Some other names that have been bandied about are Cass Sunstein, a law professor at the University of Chicago and Senator Amy Klobuchar, who has expressed a lack of interest in the not yet available position.

While politicians and political analysts decry the state of debate in this country, and often rightfully so, they will most likely continue to participate in the pie-eating contest all the same. The eventual nomination and subsequent fight over said nominee are likely to follow the same patterns of the past 10 years with a lot of rhetoric, no small amount of hyperbole, and ultimately a Senate that confirms the President’s nominee. How long Stevens will sit back and enjoy the show before announcing his retirement is anyone’s guess.


  1. SCOTUSblog.com, http://www.scotusblog.com/2010/04/court-passes-up-jury-bias-case/
  2. The Washington Post, http://voices.washingtonpost.com/44/2010/04/specter-urges-justice-stevens.html
  3. The New Yorker, http://www.newyorker.com/reporting/2010/03/22/100322fa_fact_toobin
  4. The Kansas City Star, http://voices.kansascity.com/node/8471
  5. Crooksandliars.com, http://crooksandliars.com/john-amato/rep-jon-kyl-vows-filibuster-obamas-poss
  6. Slate.com, http://www.slate.com/id/2249929/
  7. The American Prospect, http://www.prospect.org/cs/articles?article=the_most_activist_court
  8. http://en.wikipedia.org/wiki/Supreme_Court_of_the_United_States
  9. Pew Research, http://pewresearch.org/pubs/1478/political-iq-quiz-knowledge-filibuster-debt-colbert-steele
  10. The Huffington Post, http://www.huffingtonpost.com/2009/05/04/jeff-sessions-top-goper-o_n_195803.html
  11. The Huffington Post, http://www.huffingtonpost.com/daniel-cluchey/no-justices-no-peace_b_526491.html
  12. Mediamatters.org, http://mediamatters.org/research/201001200052
  13. CBS, http://www.cbsnews.com/stories/2010/04/05/politics/main6366318.shtml
  14. Fox News, http://www.foxnews.com/politics/2010/04/04/sen-kyl-fires-shot-battle-supreme-court-nominee/

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