With only two women among the nine justices, one line of thinking goes, President Obama will pick a woman. No, another argument goes, he would not feel so compelled and, anyway, he should save his strongest woman candidate for when pioneering feminist Justice Ruth Bader Ginsburg, 77, retires.
It has now been two weeks since Justice John Paul Stevens announced his retirement, and from last year’s pattern and what White House aides are saying now, numerous interviews already have been conducted. About ten people are in the mix, with three inside favorites: U.S. Solicitor General Elena Kagan and U.S. Appeals Court Judges Diane Wood, of Chicago, and Merrick Garland, of Washington, D.C. Last year, within about two weeks of Justice David Souter’s May 1 retirement announcement, then-Judge Sonia Sotomayor had been interviewed by a half dozen top administration lawyers. President Obama interviewed her on May 21, offered her the job on May 25, and made his choice public on May 26. Read her dramatic recounting of his call to her here.
Now that President Obama has officially launched the process to replace Justice Stevens, who announced his impending retirement on Friday, it is interesting to recall the approach President Ford took in 1975. While it represents a more non-ideological model than today’s Supreme Court selection process, there are likely to be similarities in administration screening, timing — and an eye to the political atmosphere in the nation.
Justice William O. Douglas, who had been in failing health for months and being pressured by some colleagues to retire, wrote to Ford on November 12, 1975 to let him know he would step down. (Douglas had served since 1939; he holds the record for longevity on the bench.)
A colleague who covers the Court asked that in an e-mail today. He said he had thought that Justice John Paul Stevens was ready to retire at the end of this term but said the justice’s recent remarks might be read as a signal he truly is undecided and may stay. My response: He’s leaving.
I base that not only on what Justice Stevens has said in interviews but that he is even giving interviews.
As Supreme Court justices circulate draft opinions among themselves and respond to each other’s writing, no two justices engage in a tit-for-tat like Antonin Scalia and John Paul Stevens.
These defenders of conservatism and liberalism, respectively, disagree on big issues, of course, but they are also the two most likely to tussle down in the weeds — on the meaning of a statute, interpretation of precedent or nuances of a legal test. It is not unusual for Scalia to make some assertion that sets off Stevens, who then fires back in his opinion, which prompts Scalia to return the volley, which gets Stevens going again.
Before Sandra Day O’Connor was a Supreme Court justice or even an Arizona state court judge, she was an elected legislator and often talked about women and political power. In the 1970s, when she was in her early 40s, O’Connor would echo anthropologist Margaret Mead, “If women want real power and change, they must run for public office and use the vote more intelligently.” Years later, as O’Connor was nearing the end of her 25 years on the bench, she wrote, “Power [is] the ability to do. For both men and women, the first step in getting power is to become visible to others – and then to put on an impressive show.”
As legal analysts argue over the possible success of constitutional challenges to the U.S. health care overhaul signed today, I am reminded of how even conservative justices have disagreed through the years on how much the federal government should be involved in state activities.
Justice Scalia voted in the 1995 United States v. Lopez to overturn a U.S. law that regulated guns near schools because it encroached on state authority, yet voted in the 2005 Gonzales v. Raich to uphold federal drug law that voided California’s medical-marijuana policy, over protests from dissenters that the law infringed on the states. Scalia opposed the federal government usurping local handgun regulation but let it override state choices about drug laws.
I was reminded twice in the past week of the culture of notes and letters at the Supreme Court. When I spoke to a group of mid-career journalists at the National Press Foundation on Monday, a reporter asked who at the Court I would call or e-mail if I wanted to interview a justice. I said I often wrote a letter to the justice detailing my request. “A letter?” she said with disbelief and a tone of who-does-that-anymore? But this is an old-fashioned bunch and that is how they regularly communicate with each other and the outside world. Many of them e-mail and even text now, but they still write letters — handwritten letters on heavy, engraved stationery.
Justice Scalia has been voicing his disdain for legislative history for a quarter century now. Today we celebrate the latest case in point — and his birthday.
Scalia does not believe federal judges trying to interpret a statute should look to congressional committee reports, floor speeches and other artifacts of the legislative process. He says judges should look solely at the text of the law and related statutes to determine Congress’s intention.
For the past three Supreme Court appointments – and those going back even further – top White House aides reached out to potential candidates and methodically scrutinized records before any definite assurance of a vacancy. I have no doubt that’s happening right now, given the odds that Justice John Paul Stevens will soon announce his retirement.