Image: Stephen Breyer, Ruth Bader Ginsburg, Clarence Thomas, John Paul Stevens, John G. Roberts
J. Scott Applewhite  /  AP file
Justice John Paul Stevens, second from right, sits with other members of the Supreme Court during a memorial for the late Chief Justice William H. Rehnquist, in Washington on June 15, 2006.
updated 4/10/2010 12:46:35 PM ET 2010-04-10T16:46:35

Republicans are promising a "whale of a fight" during the congressional election campaign if President Barack Obama picks too liberal a nominee to succeed retiring Supreme Court Justice John Paul Stevens.

Eleven days before his 90th birthday, Stevens said Friday he would step down when the court finishes its work for the summer, in hopes that a replacement could be confirmed well before the next term begins in October.

Obama said he would quickly name a successor in the mold of Stevens, who he said was a voice for ordinary people rather than powerful interests.

A White House official said about 10 people are under consideration, but speculation has focused on fewer than that. Leading candidates are said to be Solicitor General Elena Kagan, 49, and federal appellate judges Merrick Garland, 57, in Washington and Diane Wood, 59, in Chicago. All three were considered last year as well, and Obama interviewed Kagan and Wood before choosing Sonia Sotomayor for the high court.

Of those, Wood would be most likely to excite Obama's liberal base and stir up conservative opposition. Garland is seen as most acceptable to Republicans, with Kagan somewhere in between.

Senate Republicans said the nominee should not be an activist, which they describe as someone driven by a preferred result rather than by the law. In practice, though, Republicans find that only liberal Democratic-appointed judges wear the activist label.

"I have hopes that President Obama will at least try to appoint somebody who will get a huge bipartisan vote, and if he will, he's going to go down in history as a better president," said Sen. Orrin Hatch, R-Utah. "If he doesn't, there's going to be a whale of a fight if he appoints an activist to the court. That's not good for him, it's not good for the Senate, it's not good for the country."

Looking toward the hearings, Senate Republican leader Mitch McConnell of Kentucky said, "Americans can expect Senate Republicans to make a sustained and vigorous case for judicial restraint and the fundamental importance of an evenhanded reading of the law."

'Civil discourse'
Much like the Republicans, Democrats said they hoped to avoid a partisan fight, though neither party appears to expect anything other than a rancorous debate. Sen. Patrick Leahy, D-Vt., chairman of the Senate Judiciary Committee, appealed for civility.

"I hope that senators on both sides of the aisle will make this process a thoughtful and civil discourse," he said.

Who's who on the Supreme Court With just 41 seats in the Senate — their second-smallest contingent in 29 years — Republicans would have to be unified to block an Obama nominee. Last year, nine Republicans joined to help confirm Obama's first high court nominee, the liberal-leaning Sotomayor.

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Democrats said they would follow the same approach that led to Sotomayor's confirmation in August as the court's 111th justice. Obama nominated her less than four weeks after Justice David Souter announced his retirement. The Senate held a confirmation hearing in July.

Stevens is the court's last remaining World War II veteran. His retirement had been hinted at for months, and the White House had made clear it would be ready to nominate a replacement quickly.

Ready for battle
At the very least, the high court nomination could rev up both Democratic and Republican fundraising machines for the November election, even though Stevens' replacement by a liberal-leaning justice would not alter the court's ideological balance. Partisans on both sides were ready for a conflict.

Jay Sekulow, chief counsel at the conservative American Center for Law and Justice, said, "President Obama is likely to name a nominee who will embrace an extremely liberal judicial philosophy."

Five steps to filling a Supreme Court vacancyMichael Keegan, president of the liberal People for the American Way said, "In recent years, the court has given extraordinary preference to powerful interests at the expense of ordinary Americans. Justice Stevens was a bulwark against that trend. Our country's next justice must play a similar role."

How much of a fight Republicans put up probably will turn on whom Obama chooses.

"If it's Diane Wood, I think you'll see a very strong pitched battle," said Michael Carvin, a partner with the Jones, Day law firm who served in the Reagan administration Justice Department and is active in Republican politics.

Stevens' legacy
Beyond the political back-and-forth, a new justice is unlikely to exert the same influence for which Stevens has been known over the past 15 years. He has repeatedly demonstrated an ability to attract the support of the court's swing votes, now-retired Justice Sandra Day O'Connor and Justice Anthony Kennedy, to preserve abortion rights, to limit application of the death penalty and to restrain Bush administration policies on the detention of suspected terrorists following the Sept. 11, 2001, attacks.

Video: End of era However, after the arrival of Chief Justice John Roberts and Justice Samuel Alito, President George W. Bush's appointees, Stevens more often was among the four liberal justices in dissent. He was on the losing end of a major case involving campaign finance laws in January.

That dissent showed both the eloquence of Stevens' writing and, in his stumbling reading of his opinion in the courtroom, signs that his age might at long last be affecting him, though he remains an active tennis player and swimmer.

Roberts said in a written statement Friday that Stevens "has enriched the lives of everyone at the court through his intellect, independence, and warm grace."

Copyright 2010 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

Video: How will successor shape high court?

  1. Closed captioning of: How will successor shape high court?

    >> dollars in additional taxes.

    >>> there is growing speculation this morning on just who might fill the seat of retiring supreme court justice john paul stevens . the 89-year-old will step down from the bench this summer, giving president obama his second opportunity to shape the nation's highest court . joining me now, paul rofstein, a professor at georgetown law school . good morning, paul .

    >> good morning, how are you, alex ?

    >> i'm well. i hope you are too. let's get to the discussion here. in addition to sitting judges, the president is said to be considering people who have served public office , even, and governor jennifer granholm 's name, of michigan, comes to mind. how might that shape the court ?

    >> the great brown versus board of education that integrated the schools was decided by a supreme court that contained a lot of people who were not previously sitting judges. they were from the political arena, governor, for example. and that really does make a difference, because i think if somebody who's a governor or from some other political position like that, they are a little bit more inclined to use the court as a kind of legislative body to recognize that the supreme court is different from lower courts. it only gets cases where there's law on both sides, almost equal law, so they have to make some kind of decision that refers to something else, like maybe what's good for society. and i think politicians, good ones, maybe understand that better than sitting judges.

    >> interesting. i want to get your snapshot reaction, paul , to a couple of people that their names keep popping up, in all likelihood because they were already vetted in the process last year as they went through the process to get judge sonia sotomayor . but these three right here, elena kagan , u.s. solicitor general , diane wood , chicago federal appeals court judge, merrick garland , d.c. federal appeals court judge. weigh in on those three.

    >> well, diane wood is a former colleague of mine at george thageorgetown law where i teach. she's a very good, very competent judge. she may be a little bit too liberal for some of the people on the conservative side. elena kagan , current attorney general, handles all the appeals cases of the united states government . former dean of harvard. she introduced some conservative faculty members into harvard. she is somewhat liberal , but perhaps not as liberal as diane wood . merrick garland , a currently sitting federal court of appeals judge in the district of columbia , very, very, very good. elena kagan is the youngest, she's 49. and when a president makes an appointment to the supreme court , they like to look for someone who has a long life span . i mean, stevens was on the court for 34 years. someone who can influence the court long after the president is gone.

    >> and you mentioned their leanings politically. how much under scrutiny is that going to be, do you think, in this process? whether this president picks someone of a more centrist ideology or moving to the left, which would replace this left-leaning justice?

    >> i think president obama is going to take someone at least somewhat to the left and maybe more to the left than that. and i think whoever he picks, it's going to be a big brouhaha this morning in the confirmation hearings, because everybody uses it as a political megaphone to either excoriate or praise the president. it's turned into a little bit a of a political showcase, the hearings. the democrats do have a solid majority. they don't quite have enough to preempt exactly and completely a filibuster, but i think it's unlikely that the republicans will filibuster, but they will have an awful lot to say, whomever he picks. and these are turned into sort of ridiculous shows of sotomayor was forced to kind of agree with stuff that was completely ridiculous in order to get the job in the hearings. that judges are just judging balls and strikes and that their experience and their philosophy has nothing to do with it. and she knows that's not true, but that's what this has turned into -- she's a very good judge. i read her opinions for the american bar association , who then gave her the highest rating. and she's a terrific judge.

    >> well, i'm glad to hear you think so. and huathank you for sharing your other thoughts as well. paul rothstein, thank you.

    >>> in a few days, kfc


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