Totenberg: Stevens' Legacy And Likely Successors

SCOTT SIMON, host:

Whenever there's a vacancy in the U.S. Supreme Court, nobody better to talk to than NPR's legal affairs correspondent Nina Totenberg. Nina, thanks for being with us.

NINA TOTENBERG: My pleasure, Scott.

SIMON: You did a story last night in which you quoted the former solicitor general, Ted Olson, as saying that Justice Stevens' crafty - what did he call them?

TOTENBERG: Crafty hand.

SIMON: Crafty hand was in decision after decision. What did he mean?

TOTENBERG: That he was, and is, an enormously influential justice. That he was able to build majorities when you might not have thought that he could for his point of view. That he won over people with sheer logic and skill. And that he wrote some of the court's most famous decisions in every area, from school prayer to abortion to obscenity to the limits of presidential power to the decision that said President Clinton had to go to trial in the Paula Jones case.

I mean, there is no area of the law that he hasn't had a major imprimatur on. And he also wrote in some of the most complex and difficult areas of the law. So, that's what he meant by his crafty hand is everywhere.

SIMON: Lots of names are being mentioned. What are the ones that you think should make our ears perk up in particular over the next few weeks?

TOTENBERG: Well, Solicitor General Elena Kagan, former dean of the Harvard Law School. She's the youngest at 49. She's the government's chief appellate advocate in the Supreme Court and in the lower appellate courts. She's the former dean of the Harvard Law School. The downside is that because she has assiduously made sure that her personal views are not known, liberals, I suppose, are a little suspicious about her.

And conservatives are very suspicious about her, at least in the Senate. There were 31 votes against her confirmation, mainly because as dean at Harvard Law School, she was responsible for a policy that kicked military recruiters off campus because of the Don't Ask Don't Tell policy. And she signed on to a friend of the court brief that took the issue to the Supreme Court in terms of whether the school could lose its money over that. And the schools lost spectacularly and unanimously.

But, you know, I would say she might even be the hottest contender.

Then there's Merrick Garland, who was a top Justice Department aide in the Clinton administration, led the early stages of the Oklahoma City bombing investigation, has been on the D.C. Court of Appeals since 1997, and is much beloved to Orrin Hatch, Republican Orrin Hatch, which makes him certainly the most easily confirmable.

Then there's Diane Wood, certainly the most liberal name on the list; a judge on the federal appeals court in Chicago. Probably her biggest problem is that she has written some abortion decisions that the right would consider incendiary.

But you have to look at this list - and there are others like Homeland Security Secretary Janet Napolitano. The president would love to name somebody with some actual real-life political experience, not just somebody who's been in academia or on a federal court.

But as one White House aide said to me, she's sort of the vet from hell because of the number of jobs she's held: governor, attorney general of a state, U.S. attorney.

It's interesting though, when you look at these names, with the exception of Diane Wood, they're probably all more conservative than Justice Stevens. So, the court will likely...it'll be a liberal replacing a liberal, but in all likelihood, I'd have to say that the odds are that the court will be yet more conservative.

SIMON: Of course, I think I learned from you, you can't predict too much in advance from someone, as arguably you couldn't from Justice Stevens. How might his replacement affect the alchemy of the court in the course over the next few years?

TOTENBERG: Well, Justice Stevens certainly has changed a bit over the years, but what's really changed is the court. He was a moderate conservative, but the court's moved so dramatically to the right that he's now on the left wing of the court.

You can't tell how the alchemy will change over time. You know, some of the liberals would love President Obama, for example, to pick a true blue liberal like Justice William Brennan. And there are names out there - Stanford Law Professor Pam Carlin, former Yale Law School Dean Harold Coe, who's now at the State Department. I just don't think that's in the cards. Not only would they be very tough to confirm, but I actually think the president isn't that liberal on some of these issues.

He's actually written about it a fair amount and I think you'd have to call him a moderate liberal. And most of the people who are talked about are moderate liberals.

SIMON: It's an election year, and I guess it would be naive to think that everybody would behave as if it werent. But how is the prospect of an election likely to affect the nomination the president makes and the reception he or she gets, in the Senate?

TOTENBERG: Well, it will affect things, and Republicans are already talking about a potential filibuster. I still think that's pretty hard unless they get something about a nominee that we don't know. Because the only real filibuster in modern times was the filibuster of Abe Fortas, and Democrats actually helped in the end to get the plug pulled on that nomination.

So, you can vote against a nominee, but to prevent a vote might look very obstructionist, and I still think that's a risky position for any party to take.

SIMON: NPR's legal affairs correspondent Nina Totenberg. Thanks so much.

TOTENBERG: Thank you, Scott.

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