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Who's on the Shortlist to Replace Justice Stevens?

Three candidates are rumored to sit atop Obama's shortlist to replace Stevens -- will any of them garner a Republican filibuster?
 
 
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This story was written by Faiz Shakir, Amanda Terkel, Matt Corley, Benjamin Armbruster, Zaid Jilani, Igor Volsky, and Alex Seitz-Wald.

On Friday, Justice John Paul Stevens, the longest-serving Supreme Court justice on the bench, announced that he would retire at the end of the term. President Obama, who has been preparing for an additional court vacancy for some time, suggested that he would name Steven's replacement in a matter of weeks. "We cannot replace Justice Stevens' experience or wisdom," Obama said in a brief statement. "I'll 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. It will also be someone who, like Justice Stevens, knows that in democracy powerful interests must not be allowed to drown out the voices of ordinary citizens." Stevens was a Republican named to the court in 1975 by President Gerald Ford and became the court's most liberal justice in the second half of his tenure, as the composition of the court grew more and more conservative. Obama described Stevens as a "brilliant, non-ideological, pragmatic" justice who "applied the Constitution and the laws of the land with fidelity and restraint." He said he hoped the Senate would make sure Stevens' successor is in place for the beginning of the court's new term in October.

STEVENS' LEGACY: In his more than three decades on the court, "Stevens leaves a legacy of defending abortion rights, expanding protection for gays, restricting the availability of the death penalty and ensuring a robust role for judges in interpreting the nation's laws and curbing executive power," the Washington Post notes. "He embraced affirmative action (after first questioning it); declared a belief that the death penalty is unconstitutional (after first voting to restore it); and supported protections for gays. He also defended abortion rights and opposed the notion that the Second Amendment guarantees a right to personal gun ownership." The decisions Stevens is likely to be remembered for most, however, are those he authored on national security and presidential power. He wrote the court's 5-3 decision "repudiating President Bush's assertion of unilateral executive power in setting up war crimes tribunals at Guantanamo Bay, Cuba," and he authored the court's 6-3 decision allowing the Guantanamo detainees to challenge their detentions in the U.S. courts. In one of his least known decisions, Stevens convinced his fellow justices that "VCRs did not violate copyright laws when used in the home to make a single copy for personal use," refuting Hollywood's push to ban the devices and punish both the manufacturer and the home user with fines for copyright infringement. Stevens' 1992 decision in Quill v. North Dakota -- which held that Internet vendors "are free from state-imposed duties to collect sales and use taxes" -- paved the way for the massive growth of companies like Amazon.com and other Internet retailers. His 1997 ruling overturning the Communications Decency Act protected the Internet from broadcast-like regulations which would have made it a felony "for even a news organization to post certain four-letter expletives." "Replacing Justice Stevens is harder because Stevens plays so many critical roles on the current court: He's the leader of the liberal wing, the best opinion writer on the court and, simultaneously, the justice most able to build surprising coalitions," Douglas Kendall, head of the liberal Constitutional Accountability Center, said. "When the justices vote in private conference, the senior justice speaks just after the chief justice. This has meant, especially in close, ideologically divisive cases, that Stevens has had a chance to counter the views of former chief justice William H. Rehnquist and current Chief Justice John G. Roberts Jr."

THE SHORTLIST: Three candidates are rumored to sit atop Obama's shortlist to replace Stevens. "Solicitor General Elena Kagan, whom Obama appointed as the first woman to hold the post; Judge Diane P. Wood of the U.S. Court of Appeals for the 7th Circuit in Chicago and Judge Merrick B. Garland of the U.S. Court of Appeals for the D.C. Circuit." Kagan, who some have argued is far more conservative than Stevens and could shift the political dynamic of the high court, is rapidly emerging as a frontrunner. Before becoming the first female Solicitor General in the nation's history, Kagan, 49, served as dean of Harvard Law School, where she showed an ability to build consensus and was widely credited with bringing more diverse views to the school. "As a result, when Kagan appeared last year before the Senate Judiciary Committee for her confirmation hearing as solicitor general, two conservative law professors from Harvard were on hand to support her, including Jack Goldsmith, who has been assailed in liberal circles as an architect of the Bush administration's anti-terrorism legal strategy." Some liberals have also expressed concern that she is too moderate in her views. Diane Wood is 59 and has been a federal appeals judge "since Clinton tapped her in 1995 after she served in the Justice Department for three years." Wood's writings and opinions show that she believes in a federal constitutional right to same-sex marriage, is markedly a supporter of abortion rights, and would like to see the phrase "under God" removed from the Pledge of Allegiance. Merrick Garland, 57, was an assistant federal prosecutor who handled a drug investigation into then-D.C. mayor Marion Barry before helping run the criminal division at the Department of Justice and serving as the principal associate deputy attorney general. "From his new perch, he oversaw the prosecution of Unabomber Theodore Kaczynski and the cases coming out of the anti-government movement at Ruby Ridge, Idaho." In 1997, President Clinton nominated Garland to the "U.S. Court of Appeals for the District of Columbia Circuit, considered the nation's most crucial court behind the Supreme Court." "At the outset, Garland may have the easiest path to confirmation. He is considered a judicial moderate. On the appeals court, he largely handles regulatory and national security cases, thus avoiding others involving controversial social issues," the Los Angeles Times concludes.

GOP PREPARED TO FILIBUSTER: "The retirement of Justice John Paul Stevens presents a test for Republicans as much as it does for Obama as they weigh how much they want to wage a high-profile battle over ideological issues in the months before crucial midterm elections," the New York Times observes. Indeed, the party was split in its reaction to Stevens' announcement, promising to filibuster any "ideological" nominee while also pledging to give every candidate a fair hearing. Senate Judiciary Committee members Jeff Sessions (R-AL) and Jon Kyl (R-AZ) said they would use the filibuster should Obama nominate someone they view to be outside the mainstream. Sessions even released a statement suggesting that he could make opposition to health reform a litmus test for an Obama nominee, even though the constitutional case against the Affordable Care Act is so weak that even ultra-conservative Justice Antonin Scalia rejects it. Sen. Lamar Alexander (R-TN) promised to filibuster "if the president picks someone from the fringe or someone who applies their feelings instead of applying the law." Meanwhile, Sen. John Cornyn (R-TX), another member of the Judiciary Committee, said, "We need to do our due diligence, and we need to probably bend over backwards both in appearance and in reality to give the nominee a fair process." On ABC's This Week, conservative columnist George Will criticized conservatives for saying that they want judges who will strictly follow the law while simultaneously cheering decisions that overturn the work of elected officials. Conservatives "say they're against judicial activism. By which they mean they want the court to defer to the elected political branches of government. But if you look at what's happened recently, the decision that most outraged conservatives was the Kelo decision on eminent domain. ... The court did defer to the city government in Connecticut and it enraged conservatives. The recent decision that most pleased conservatives -- Citizens United, overturning part of McCain-Feingold -- was the court not deferring to the Senate," Will said. Meanwhile, Sen. Chuck Schumer (D-NY) also a member of the Judiciary Committee, said that Obama in all his appointments has nominated "people in the mainstream," and predicted that the "likelihood of a filibuster is tiny." "One of the most important qualities for the new justice is the ability to win over Justice Kennedy," Schumer said. In other words, he added, "somebody who's going to be one of the five and not one of the four."

 
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