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High court’s leading liberal to retire, setting the stage for confirmation fight

Obama vows to replace Stevens with candidate of similar qualities

Justice John Paul Stevens has served on the Supreme Court since 1975. Justice John Paul Stevens has served on the Supreme Court since 1975. (Mark Wilson/Getty Images)
By Michael Kranish
Globe Staff / April 10, 2010

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WASHINGTON — John Paul Stevens, who was named to the Supreme Court by a Republican president but emerged over three decades as a liberal counterweight to an increasingly conservative majority, said yesterday that he will retire after the court’s current term, setting up an election-year nomination showdown on Capitol Hill.

Known for his bow ties and sharp writing style, the 89-year-old associate justice had signaled in recent weeks that he wanted to depart in time to allow President Obama and the Senate to replace him before the court’s next term begins in the fall.

The president said yesterday that he plans to quickly nominate a new justice similar to Stevens, filling the second court vacancy to arise on Obama’s watch.

“I will seek someone in the coming weeks with similar qualities: an independent mind, a record of excellence and integrity, a fierce dedication to the rule of law, and a keen understanding of how the law affects the daily lives of the American people,’’ Obama said.

Stevens’s replacement could be asked during future terms to vote on the constitutionality of the Democrats’ sweeping health care overhaul, as well new cases involving campaign finance and abortion. In addition, the court this fall is slated to hear a closely watched First Amendment case centering on whether antigay protestors can be kept at a distance from funerals of soldiers.

A White House official said yesterday that Obama is considering about 10 potential nominees and discounted speculation that there is already a front-runner. Speculation about a replacement immediately focused on Solicitor General Elena Kagan, 49, a former dean of Harvard Law School, as well as US Court of Appeals Court judges Diane P. Wood, 59, and Merrick Garland, 57, all of whom received various levels of vetting in last year’s search for a new justice.

Because the court’s five-member conservative-leaning bloc will remain intact, Obama does not have an opportunity to immediately alter the direction of the court. Rather, he is expected to nominate someone who will maintain the ideological status quo, which has resulted in a number of 5-4 decisions in recent years.

“Obama won’t get a clone of Stevens, but you would expect he would [nominate] someone who won’t make a big change in the court,’’ said Boston University law professor Jack Beermann.

Carl Tobias, a law professor at the University of Richmond, agreed, saying, “Anybody he would appoint would vote in a way pretty similar to Stevens.’’

If the experience of Obama’s successful nomination of Sonia Sotomayor last year is a guide, it will take several weeks to name a nominee, and then two to three months to get from nomination to confirmation. Sotomayor was confirmed by a 68-to-31 margin in the Senate, with all Democrats and nine Republicans supporting her. Unless Republicans break with recent tradition over Supreme Court nominations and decide to mount a filibuster, Obama would need 51 votes to win confirmation for his second nominee.

Filibusters for Supreme Court nominees are rare. The last time it happened, Republicans successfully filibustered the promotion of Associate Justice Abe Fortas to chief justice in 1968, according to the Senate website.

Republicans warned that they would wage a tough fight if they consider the nominee’s views to veer too far to the left.

Senate minority leader Mitch McConnell of Kentucky promised that Republicans will “make a sustained and vigorous case for judicial restraint and the fundamental importance of an evenhanded reading of the law.’’

Conservative activists were even more blunt. Tony Perkins, president of the Family Research Council Action and a staunch opponent of abortion rights, said in a statement that if Obama nominates “someone with a radical judicial philosophy, the fabric of our already divided country will be torn even more.’’

But if Democrats stick together, Republicans may have little chance of stopping the nominee, although they may try to turn it into another issue for the midterm elections.

The confirmation hearings will be overseen by the Senate Judiciary Committee chairman, Patrick Leahy of Vermont, who said in a statement: “I hope that senators on both sides of the aisle will make this process a thoughtful and civil discourse.’’

Stevens comes from a prominent Chicago family, served in the Navy during World War II, and was known for his independence as a federal appeals court judge. He was nominated to the Supreme Court in 1975 by President Gerald Ford and was viewed as a moderate. Stevens gradually was viewed as more liberal as the court was dominated by former Chief Justice William Rehnquist and the current chief justice, John G. Roberts Jr.

Stevens, the most senior judge on the court since the 1994 retirement of Justice Harry Blackmun, was seen as the court’s professor, occasionally winning over conservative justices based on the lucidity of his arguments and congeniality of his approach. But on some major issues, Stevens found himself writing historic opinions — for the dissent.

In one of his most recent, Stevens wrote a stinging dissent to a 5-4 decision that threw out a law that put limits on certain types of campaign ads. “While American democracy is imperfect, few outside the majority of this court would have thought its flaws included a dearth of corporate money in politics,’’ Stevens wrote. He wrote that the ruling “threatens to undermine the integrity of elected institutions across the nation.’’

In 2000, he issued the dissent in Bush v. Gore, in which the Supreme Court, by a 5-4 vote, handed the presidential election to George W. Bush. Stevens wrote that the court’s decision undermined the authority of state judges who would have overseen a recount.

“Although we may never know with complete certainty the identity of the winner of this year’s presidential election, the identity of the loser is perfectly clear,’’ Stevens wrote. “It is the nation’s confidence in the judge as an impartial guardian of the rule of law.’’

Sonja West, a former Stevens clerk who is a professor at the University of Georgia School of Law, said Stevens “will be missed for his leadership, both as someone who could piece together a five-member majority from the most unlikely of places but, at the same time, as someone who had courage to stand alone in dissent when he felt it was necessary.’’

“I think there will be a readjustment period for the left-leaning wing of the court,’’ West added. “There will be a need to find new leadership that is trusted and respected by all the justices. That’s not something that comes quickly or easily.’’

Stevens’s replacement is expected to take a seat on the court in time for the term that begins on the first Monday in October. Among the cases that may be heard during the next couple of terms is whether the health care legislation backed by Obama and approved by a Democrat-controlled Congress is constitutional. Attorneys general in 14 states have sued the federal government on grounds that the legislation’s requirement that most people have health insurance is unconstitutional. The Obama administration has defended the law. Kagan, as solicitor general, would be expected to argue the case on the administration’s behalf unless she becomes a justice or otherwise leaves her job.

Chief Justice Roberts,a conservative who was nominated by President George W. Bush and who frequently disagreed with Stevens, nonetheless praised the retiring justice. Stevens, Roberts said, “has enriched the lives of everyone at the court through his intellect, independence, and warm grace.’’

Material from the Associated Press was included in this report.