Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
The New York Times notes that Justice John Paul Stevens has only hired one law clerk for next year, the term beginning in October 2010, prompting speculation that he may be retiring at the end of the 2009 term. Souter did the same thing last year, signaling his retirement from the court. And at least one person close to Stevens thinks this is a likely sign because Stevens would like to be replaced by President Obama:
There is at least some reason, Professor Eisgruber said, to think the justice intends to retire relatively soon. "Justice Stevens would have to be pleased at the thought that his successor would be appointed by Barack Obama, an African-American lawyer from the city of Chicago," he said.Justice Stevens has deep roots in Chicago and frequently hires law clerks from the law schools of the University of Chicago, where Mr. Obama taught and where Justice Stevens went to college, and of Northwestern, where the justice attended law school.
The fight over a Stevens replacement would be much more dramatic than the fight over Sonia Sotomayor to replace Souter, for several reasons. Though it won't change the basic split of the court, Stevens, as the longest serving justice, was a much bigger presence on the court than Souter. And he is more consistently liberal than Souter was.
I don't think liberal intellectuals will be as satisfied with a middle of the road justice like Sotomayor (forget all that "radical" crap the right threw up against Sotomayor; they know that they got about as good a pick for them as they could possibly hope for from Obama) to replace Stevens. They're looking for a justice with serious gravitas and intellect, someone who can act as a liberal counterpoint to Justice Scalia.
And this fight would likely take place with Obama having much lower public approval ratings than he had during the Sotomayor confirmation battle, which does make a difference, and during an election year. That might tend to push Obama toward nominating someone who could be easily confirmed -- and that means another stealth nominee of some sort, not a staunch liberal with a track record.
I just hope it isn't Cass Sunstein. Yes, it might be fun to see how he would interact with Scalia - the conservative minimalist against the liberal minimalist. But in the end, Sunstein is a totally incoherent legal thinker and that's the last thing we need on the court. My early betting line: 3/1 on Elena Kagan, 5/1 on Diane Wood.
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I'm openly cheering for Diane Wood right now... anyone got any other ideas?
Posted by: Jeff | September 4, 2009 9:59 AM
There's the added factor of the Dems lacking 60 seats in the Senate until a successor to Kennedy can be installed.
Posted by: Herod the Freemason | September 4, 2009 10:16 AM
I see Diane Wood as a good option, a more progressive interpretation of the constitution, strong, at least from what I've read, supporter of individual liberties.
My fear is that Obama appoints another "moderate" who, when it comes to law enforcement, etc., is really quite conservative.
It strikes me that no matter who Obama appoints they will become a radical liberal socialist atheist Kenyan Muslim dedicated to destroying the constitution to establish a fascist anarchist state.™
Posted by: dogmeatib | September 4, 2009 10:18 AM
John Paul Stevens deserves a Medal of Honor for holding on long enough to deny Dubious a chance to replace him with the sort of corrupt bastards now sitting in Rehnquist's and O'Connor's seats. He is a genuine Hero!
I only hope you're right that Sotomayor was "as good a pick for them as they could possibly hope for from Obama" - Mr. meet-them-halfway-before-they-even-move seems quite likely to nominate the president of the Federalist Society in a hopeless gambit for one Repub vote for an already-meaninglessly compromised health-care "reform" bill.
Posted by: Pierce R. Butler | September 4, 2009 10:18 AM
I would like to see a black Hispanic lesbian atheist quadruple amputee get the nod.
Posted by: Herod the Freemason | September 4, 2009 10:19 AM
I would like to see Harold Koh. I think it's unlikely, but not impossible.
Posted by: barry21 | September 4, 2009 10:26 AM
While it's been inevitable Justice Stevens would retire once Obama won the Office of the President, my heart still sank when I read this news.
I view J. Stevens as the Bear Bryant of the SCOTUS. He took his own interpretational methods and beat you; he could also take your interpretational methods and beat you, soundly. Maybe not beating in terms of votes since the Right rarely wanders off the reservation, but certainly in quality of research and coherency of his arguments - arguments that will resonate far beyond his tenure on the Bench. His originalist argument on why the 2nd Amendment doesn't refer to an individual right was breathtaking (though I still disagree with him for reasons no justice covered in Heller).
I view Justice Stevens as an absolute giant. His ability to write opinions provided ample evidence of how conservative jurisprudence claiming a purity or fealty to their self-proclaimed methods of jurisprudence was an almost perfect farce, and instead focused on achieving conservative political objectives. An observation statistically validated by Scott Douglas Gerber in First Principles: The Jurisprudence of Clarence Thomas
Replacing Stevens is no time for meekness, timidity, or conciliation. President Obama needs a giant of an intellect and a writer. I don't think this is a time for a politician or peacekeeper, but instead a Justice who can match or exceed both the writing and rhetorical skills that Scalia provides to the Right coupled the energy and thinking skills that exceeds all other justices' ability to defend the Constitutions, and its principles, and ideals. The latter quality arguing not for the self-proclaimed narrow modest approach Justice Roberts falsely claims, but instead a big bold defender of the individual rights we reserved, desire to exercise, and demand our government defend.
If no blood is drawn* in the Senate on this appointment, then those of us who love liberty will have surely lost.
*rhetorically speaking
Posted by: Michael Heath | September 4, 2009 11:12 AM
The best thing Obama can do is nominate someone young. The extreme right of Scalia and Thomas will be on the Court for a long time to come. There needs to be some balance, even though with no true liberals, the balance will always tilt rightward.
Posted by: James Stripes | September 4, 2009 11:34 AM
And then there's Kathleen Sullivan as a 100/1 shot....
Posted by: abb3w | September 4, 2009 12:04 PM
I nominate Anita Hill. Not only is she qualified, it would make Clarence Thomas's head explode, and then Obama could replace him too.
Posted by: LightningRose | September 4, 2009 12:24 PM
Can we re-animate the corpse of Oliver Wendell Holmes, Jr.? Why aren't there SCOTUS Justices as intelligent, insightful, and just plain awesome as him these days? The closest we might get these days is probably Richard Posner. Not a liberal, of course.
Posted by: Mathew Wilder | September 4, 2009 12:26 PM
Wilder @ 11:
Justice Breyer's approach is fairly consistent to Holmes, especially their deference to legislators.
I'd take Justice Stevens any day of the week over Holmes.
However I agree with your point regarding your desire for someone great. Holmes was a success because he was arguably the best of his generation, his nomination was generally perceived as apolitical. For Obama to do the same, and as I stated earlier, there would be blood in the Senate.
There are plenty of equals to Posner, who I also admire, but is too old and too conservative for Obama to nominate and would absolutely ruin the Court given its already dangerous balance (dangerous if you want individual rights defended, especially against corporate rights). Many of these leading lights are young, e.g., Wood, Kagan, Koh, Barnett, Amar, and Volokh. Barnett and Volokh are probably politically objectionable to the Democratic party and would never even get a Committee vote, let alone a vote on the floor.
Posted by: Michael Heath | September 4, 2009 1:01 PM