Two Jews are said to be among the three leading candidates for the next Supreme Court opening; Justice John Paul Stevens, the court’s oldest member and leader of its liberal bloc, announced Friday, April 9 that he will step down when the court finishes its work for the summer.
Stevens made the announcement 11 days before his 90th birthday. When he retires after more than 34 years on the court, President Barack Obama will have his second high court pick in as many years.
The two Jews are Solicitor General Elena Kagan, 49, and Judge Merrick Garland, 57, of the federal appeals court in Washington.
He is a former high-ranking Justice Department official who is well respected and considered least likely to engender significant Republican opposition.
Kagan and another candidate, Judge Diane Wood, 59, of the federal appeals court in Chicago, both were finalists last year when Obama chose Sonia Sotomayor to replace Justice David Souter.
Currently two of the nine Supreme Court members, justices Ruth Bader Ginsburg and Stephen Breyer, are Jewish. Louis Brandeis became the first Jew to serve on the Supreme Court in 1916; since then, six other Jewish justices have sat on the highest judicial bench.
The three prospects have different strengths and weaknesses. But even conservative activists say any of the three would likely win confirmation in a Senate where Democrats control 59 seats. Republican Sen. Jon Kyl of Arizona said April 4 that he would not rule out delaying tactics if Obama nominates “an overly ideological person.”
A fight over a second Obama Supreme Court nominee could rev up both Democratic and Republican fundraising machines for the November election, even though Stevens’ replacement by a liberal-leaning justice would not alter the court’s ideological balance.
Any new justice, however, would be hard-pressed to immediately replicate Stevens’ success in forging majorities by winning the votes of Justices Sandra Day O’Connor (now retired) and Anthony Kennedy in high-profile cases ranging from abortion to the rights of detainees at the U.S. naval base in Cuba.
The president’s choice could depend on several factors, including how much political energy he wants to expend, particularly in advance of congressional elections. On the other hand, with Democrats widely expected to lose Senate seats in November, Obama might be willing to push for a more controversial nominee now because confirmations likely will only get harder next year.
Among other considerations:
• Does Obama want to name another woman, or a member of an ethnic or racial minority?
• Would it matter to him, or anyone else, if the court were made up entirely of Catholics and Jews? Stevens is the only Protestant on the court now; the other members are six Catholics and two Jews.
• If a president’s Supreme Court choices help shape his legacy, would Obama favor Kagan, the youngest of the three?
• Does Wood, raised and educated in Texas, have an edge because she would replace Stevens, a Northwestern University law graduate, as the only justice without an Ivy League pedigree?
If the president is casting a wider net, two Democratic governors — Jennifer Granholm of Michigan and Deval Patrick of Massachusetts — also could be considered.
Because so little time has passed since last year’s selection and confirmation of Sotomayor, both the White House and its political opponents are going over well-worn ground in evaluating Kagan and Wood. Obama interviewed them both before settling on Sotomayor.
Wood has a paper trail of opinions that appears most likely to generate sustained opposition from Senate Republicans and conservative interest groups. Even as she was being considered last year, conservatives cited her opinion in a 2001 case that went against anti-abortion protesters who wanted to blockade clinics. The Supreme Court reversed the ruling.
But Wood also has served for 15 years as a judge with two prominent conservatives, Judges Frank Easterbrook and Richard Posner. The 7th U.S. Circuit Court of Appeals is noted for its collegiality, despite ideological divisions, a point that could appeal to Obama.
Wood was nominated to the 7th Circuit by President Bill Clinton in March 1995. She was confirmed unanimously by the Senate and received her commission three months later.
Stevens also served on the same appeals court before President Gerald Ford nominated him to the Supreme Court in 1975.
When Obama named Kagan solicitor general in 2009, she became the first woman to serve in that role. The solicitor general represents the United States in front of the Supreme Court, arguing cases and filing briefs stating the government’s position when the government is not a direct party to the case. Kagan has argued a half-dozen cases in the past year.
The position is often seen as a steppingstone to a Supreme Court nomination. Thurgood Marshall is the most recent of several justices who served in that role before joining the Supreme Court.
Kagan and Obama taught at the University of Chicago Law School at the same time during the 1990s. She served as associate counsel in the Clinton White House, and was appointed the first female dean of Harvard Law School in 2003. At Harvard, Obama’s alma mater, Kagan earned a reputation for hiring prominent conservative legal scholars and bridging disagreements between liberal and conservative faculty members.
Yet 31 Republican senators voted against her confirmation as solicitor general in what was seen as a warning to Obama should he want to put her on the Supreme Court.
Kagan would likely face questions over her objections to campus military recruiters at Harvard, stemming from her disagreement with the U.S. policy on gays serving in the military.
Like Stevens, Garland was born in Chicago. He has been a federal judge since 1997, including serving for two years with John Roberts before Roberts became chief justice. Garland and Roberts also served as young law clerks for the same appeals court judge in New York, Henry Friendly.
AP writers Jesse J. Holland and Julie Pace contributed to this report.