Stevens' Exit A Chance For Obama To Make Mark

After Friday's announcement that Supreme Court Justice John Paul Stevens will be leaving the court, all eyes turn toward the White House in anticipation of the president's next appointment. NPR's Nina Totenberg talks with Linda Wertheimer about the contenders for that position and the confirmation battle that may await them.

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LINDA WERTHEIMER, host:

We're back with ALL THINGS CONSIDERED from NPR News. I'm Linda Wertheimer.

He is the fourth longest serving Supreme Court justice in American history. But yesterday, John Paul Stevens announced that he will end his tenure and step down when the court concludes its business this June.

Joining us to talk about what happens next is NPR's legal affairs correspondent Nina Totenberg. Nina, welcome.

NINA TOTENBERG: Thank you, Linda.

WERTHEIMER: A retirement on the court is a chance for the president to make his mark and for Republicans to try to undo that effort. What's the politics on this for the president?

TOTENBERG: Well, the political calculus basically is how much capital does he want to spend? If you look at the Bush presidency, you'd have to say that perhaps his most lasting legacy is the appointment of two extremely conservative justices - Chief Justice John Roberts and Justice Samuel Alito.

And I have to tell you that most of the names being mentioned to replace Justice Stevens are more conservative than Stevens is, so that the court, while more conservative than at anytime probably in the last 75 years or so, could get more so even with the appointment of a so-called liberal, because that liberal would be less liberal than Stevens in all likelihood.

WERTHEIMER: There's a lot of talk about who those people might be who will be considered to replace Justice Stevens on the court. Let's talk about who the great mentioner is mentioning.

(Soundbite of laughter)

TOTENBERG: Well, and I'll tell you a little bit about the political calculus on each one of these. Elena Kagan, the former dean of Harvard Law School, now the government's chief advocate in the Supreme Court. At 49, she's the youngest, therefore, could serve the longest.

But there were 31 Republican votes against her when she was confirmed for her current job, largely because she barred military recruiters from the Harvard Law School campus over the don't ask, don't tell policy. And liberals don't trust her either because she's defended some of the Obama administration's national security policies that are similar to the Bush policies.

And she's sort of the John McCain of 2000 in that people who like her - and there are lots and lots of people who love her, liberals and conservatives -they tend to pour into her their aspirations for what they want in a justice, but nobody knows what she really thinks.

WERTHEIMER: That's because she's never served as a judge...

TOTENBERG: Well, it's not just that, she...

WERTHEIMER: She has no record.

TOTENBERG: She assiduously declines to express her personal opinion. The next up, Merrick Garland, a top Clinton administration Justice Department official who led the Oklahoma bombing investigation. And he has lots of prosecutorial cred, and he's been a centrist appeals court judge since 1997. He's the easiest to confirm because some key Republicans like him.

Diane Wood, a brilliant liberal judge on the federal appeals court based in Chicago. She's going toe to toe with some of that court's most illustrious conservatives. She's the hardest to confirm, but her vast knowledge and sensible writing about business law, interestingly, has won her lots of fans in the business community.

WERTHEIMER: Republicans in the Senate have opposed the president, everything that he's done and I assume they're going to oppose him on this no matter who the nominee is. Is there any chance of a filibuster? Could Republicans stop this appointment?

TOTENBERG: Well, they're already talking about filibustering the nomination. But I think that's really more talk than action. Unless something is found out in the process that we don't know about whoever is nominated. And the reason is any senator can vote against a nominee, but to prevent a vote makes any party look extremely obstructionist. And that's why the Democrats, when there were some Democrats who try to filibuster Alito, they only got 25 votes. You know, they had 44 votes in the Senate. They couldn't even keep their own people for that very reason.

WERTHEIMER: So, what does the court, in your opinion, lose when Stevens goes off the court?

TOTENBERG: Well, he's probably the most skilled consensus builder on the court and probably the most gracious old-school person on the court. You know, when Justice Stevens would say to counsel, as he frequently did, counsel, may I ask you a question? It's always very tentative. Or he'd say, you know, maybe I - I really don't understand something, maybe I'm just not getting it. Well, it was always so gentle, but the question had a knife in it. It was something that needed to be asked.

WERTHEIMER: NPR's Nina Totenberg, thanks for coming in.

TOTENBERG: Thank you.

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