Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
ABC News speculates that we may see two Supreme Court justices retire this summer, the two obviously being John Paul Stevens and Ruth Bader Ginsburg.
Lawyers for President Obama have been working behind the scenes to prepare for the possibility of one, and maybe two Supreme Court vacancies this spring.Court watchers believe two of the more liberal members of the court, justices John Paul Stevens and Ruth Bader Ginsburg, could decide to step aside for reasons of age and health. That would give the president his second and third chance to shape his legacy on the Supreme Court.
And then they get silly:
Last week, when Obama took the nearly unprecedented step of criticizing the court's opinion in a major campaign finance case during his State of the Union speech, some believed he was showcasing for the American people that presidential elections, and Supreme Court nominations count.
Oi. There was nothing "nearly unprecedented" about a president criticizing a Supreme Court opinion. The only thing mildly unusual was that he did it with justices of the court in the audience - but since it is so rare for justices and the president to be in the same room, this is hardly a surprise. Presidents criticize Supreme Court rulings all the time.
As for the possible vacancies, I think Stevens is definitely stepping down. Ginsburg, I think, is not. Those around her have consistently talked about how engaged she is and how well she's doing in terms of health despite the treatment for pancreatic cancer. I think she's staying on the court.
A fight for Stevens' replacement would take place in a very different atmosphere from the Sotomayor confirmation. Obama's popularity has plunged since last summer and that has a real effect on his political capital.
The short list probably remains the same, though a few male candidates will likely be added to the list. Elena Kagan, Diane Wood, and Leah Ward Sears probably lead the list.
Politics
Comments
I fear we will be spared any actual civil libertarians.
Posted by: Russell | February 10, 2010 9:44 AM
Ed , i wouldnt be surprised if Granholm was also mentioned
Posted by: Vic Vanity | February 10, 2010 9:50 AM
In ABC News' defense... It appears you parsed their phrase as:
...in which case I agree with you that the word "unprecedented is bullshit there. But I parsed there phrase as:
i.e. I thought they were saying the thing that was unprecedented was that the criticism was during SotU, not that there was criticism of the court, because of course it's laughable to suggest that no president has criticized the decision of a sitting Supreme Court.
The language is still maybe a bit hyperbolic, though. Yesterday I took the "unprecedented" step of planning to go to a hibachi restaurant with both my parents and my wife (I've been to hibachi with my parents, I've been to hibachi with my wife, but never both at the same time!), but I think if I went around calling it "unprecedented", people might look at me a bit cock-eyed. heh...
Posted by: James Sweet | February 10, 2010 10:04 AM
Woah, Ginsburg has pancreatic cancer? I didn't know that's the type of cancer. I dunno, pancreatic cancer has a pretty shitty long-term survival rate. Even if she's doing well now, it might be best to step down while an only slightly right-of-center president is still in office.
Posted by: James Sweet | February 10, 2010 10:05 AM
Tagging along on James Sweet's answer, even if Ginsberg's doing well now, a relapse would be entirely unsurprising. Too unpredictable on which to base an actual prediction of retirement, as ABC News has, but unsurprising enough to speculate that Obama may very well get to replace her.
Oh, and what Russell said. In spades.
Posted by: James Hanley | February 10, 2010 10:15 AM
I'm a little bothered by Obama's last Supreme Court pick, and I'm certainly hoping he doesn't pick again in favor of someone so hostile to privacy. With the amount privacy rights are going to be on the table over the next twenty years, I am seriously concerned that we will see more bad decisions.
James and James, Ginsburg has been treated for cancer twice. She had colon cancer in '99 and pancreatic cancer in '09. Her prognosis for the pancreatic cancer was very good. The story is that they caught the tumor fairly early, at a stage where it can be easily removed without serious risk of relapse. That said, I'm sure she's still high risk, but she's in very good shape right now.
Posted by: JStein | February 10, 2010 10:36 AM
James-
It was caught very early, which is unusual for pancreatic cancer. The long-term survival rate is significantly better in her case. Especially given her current condition.
Posted by: W. Kevin Vicklund | February 10, 2010 10:38 AM
Emily Hewitt might make an amusing addition to the rumor mill, simply to see the political Right explode.
Posted by: abb3w | February 10, 2010 12:13 PM
JStein and W.Kevin,
Thanks for the correction. That's one of the great things about this blog.
Posted by: James Hanley | February 10, 2010 1:21 PM
I am in no way a constitutional expert, just an enthusiastic fanboy. IMHO Justice Stevens is an under-appreciated giant in defending the Constitution and the primary intellectual threat to conservative jurisprudence. So many of his opinions are written at least partially within the very framework used by his conservative opponents where his arguments are either far more persuasive than theirs using their preferred context, discredits their approach in that case, or points out when they're distancing themselves from their stated jurisprudence - inferring it's because it would yield a non-preferred political outcome.
President Obama needs another giant. Given the current political climate on the Right, I expect two things:
1) No matter who President Obama chooses as long as they're not a conservative, this will be an extremely ugly nominating and confirmation process solely because of the political climate on the Right.
2) If President Obama recognizes Justice Steven's contributions to the court, I think it logically follows he must nominate an intellectual giant to continue J. Steven's legacy as a check. If he does nominate such a person, that will make the process really ugly and possibly violent, in spite of the fact that replacing J. Stevens doesn't change the abstract make-up the of the court.
I will sorely miss Justice Stevens. He's a personal hero. He's opinions over the years have also served as intellectual validation that I didn't leave the Republican party so much as it left me.
Posted by: Michael Heath | February 10, 2010 2:33 PM
@Michael
You were a republican once?
Wow. Didn't see that one coming.
I do agree though, that Stevens has become a very strong weight for justice in a court otherwise peppered with the result of Political Looting.
Posted by: Tamarron | February 10, 2010 2:42 PM
When will one of the conservative justices retire? How old are Scalia and Thomas?
Posted by: peter | February 10, 2010 3:09 PM
Peter,
Scalia will be 74 in March, which is elderly, but not exceptionally so for a justice. These days, many serve into their 80s.
Thomas will be 62 in June. His youth at the time of his appointment was part of the political strategy--an effort to cement someone of a particular ideology on the Court for as long as possible (a smart strategy, I might add, whether I agree with the ideology or not).
For comparison, Stevens will be 90 in June, Rehnquist was 81 when he died while still on the Court, and Harry Blackmun was 86 when he retired.
On the other hand, O'Connor was only 76 when she retired, and Souter was only 70.
But Scalia is, so far as I know, relatively healthy, and he's such a strong personality that I don't see him quitting any time soon.
Posted by: James Hanley | February 10, 2010 3:33 PM
Tamarron @ 11:
From 1978 (when I became 18 and first voted) to 2008 I was a member of the Republican Party, I still consider myself a small 'r' republican. However I've never been a conservative, in fact I think conservatism is as incompetent in terms of governance as fascism, communism, and monarchism - it's a failed ideology that should be scrapped. Sarah Palin's unanimous support at the 2008 GOP Convention was the last straw, though I also voted for Sen. Kerry in 2004 and regret my vote in 2000 going to George W. Bush (especially since I was in the tech industry then and should have known better and was a Florida absentee voter at that time, where each vote was crucial).
Michigan, where I was raised and now live, had some notable moderates that probably influenced me than I care to admit, our former 12-year Republican governor William Milliken, who is pro-environment and pro-abortion rights (and supported Obama) and wasn't afraid to raise taxes to promote economic growth and balance the budget. Another contemporary to Mr. Milliken was Gerald Ford, also very moderate. Those gentlemen's general approach to politics has left the party and now appears to be best represented by mainstream Democrats given even conservative Democrats appear more right-wing than Misters Ford or Milliken.
There are many policy issues where I separate from most people in this forum, however Ed doesn't focus on those issues which is why I probably come off more liberal than I am given the issues he writes about are ones where I'm decidely liberal, as were many in the party decades ago until the Christianists and boll weevil southern conservative Democrats took over the party. And because I do not nor have ever had a conservative frame of mind, believe liberalism is a good thing (though often wrong), and I have far more in common with people attracted to liberalism while virtually nothing in common with conservatives except those who aren't well-informed on politics and self-identify as "fiscal conservatives / social liberals".
Posted by: Michael Heath | February 10, 2010 3:42 PM
Michael Heath, you're usually so insightful, but I think you missed the boat on this one... you really think that if Obama nominated a conservative, that the Tea Party faction of the GOP still wouldn't find a way to oppose it? I'm quite confident they would.
Posted by: James Sweet | February 10, 2010 4:00 PM
I said it before, during the Sotomayor nom, but Obama could've nominated Bork and the Right would've still gone apeshit. Events over the past year merely reinforce my hypothesis. Everything Obama does is wrong, even if it's something the Republicans wouldn't have raised a peep over when BushCo did it*.
*Note: Unless I'm terribly mistaken about which logical fallacy it is, it's like they've taken the genetic fallacy and made it the foundation of their philosophy. "Nothing that the out-group can do is right (and nothing that the in-group can do is wrong. If an in-group member does something too wrong to be curtly brushed aside, like get caught in hot man-on-man lovin', they weren't really in the in-group in the first place)".
Posted by: Modusoperandi | February 10, 2010 4:33 PM
$5 says the Republicans kill any liberal nominations so we only have conservatives and moderates left on the court.
Posted by: The Pink Ninja | February 10, 2010 5:47 PM
To Modusoperandi @16:
I think you are correct that it is the genetic fallacy. What is the counter to the genetic fallacy? I mean that in a social/political sense. How do you prevent a bunch of people who deny reality from driving the world off a cliff?
Posted by: Blue Nine | February 10, 2010 7:40 PM