While much of Washington has been preoccupied with health care, a small group of White House lawyers has been focused on another perennially contentious issue: naming the next Supreme Court justice. Although there are no guarantees, most court watchers expect John Paul Stevens, the 89-year-old longtime liberal lion, to announce his retirement soon, perhaps as early as next month, after the court holds its last oral argument of the current session. (Update: On April 9, John Paul Stevens announced his retirement, expected sometime this summer.) One leading frontrunner to replace him: Solicitor General Elena Kagan. A former Clinton White House lawyer and Harvard Law School dean, Kagan has certain advantages over U.S. appellate court Judge Diane Wood, another shortlist candidate, especially to White House aides looking to avoid a confirmation battle. At 49, she is 10 years younger than Wood and, never having been a judge, lacks the lengthy paper trail that could be picked apart by critics. Kagan is also viewed as a moderate who has taken hardline stands on major terrorism issues. And she has a history of getting along with conservatives: Kagan once even hosted a Harvard Law School dinner that warmly celebrated the 20th anniversary of conservative icon Antonin Scalia's appointment to the court.
In an effort to rally its base, the conservative Judicial Crisis Network last week distributed an e-mail attacking Kagan for endorsing "racial preferences" in a Texas case, but other conservative activists privately admitted that the brief in question merely restated the Obama administration's belief that race should be a "factor" in college admissions. One potential wild card is the content of any memos Kagan wrote as a Clinton White House lawyer. So far, they remain sealed up at the Clinton Library in Little Rock, but they would almost certainly be released in the event of her nomination.
At this stage, Kagan is far from a sure thing. Some Republicans and D.C. lawyers are quietly campaigning for another well-respected centrist, Merrick Garland, a judge on the U.S. Court of Appeals for the D.C. Circuit. Obama could also end up surprising everyone by picking a political figure--though the leading candidate in that mold, Homeland Security Secretary Janet Napolitano, has lost traction ever since her gaffe, uttered after the Christmas Day bombing attempt, that "the system worked."
If Obama does tap Kagan or Garland for the seat, it's bound to disappoint many liberals, who want him to name a progressive who can battle against the conservatism of Scalia and Chief Justice John Roberts. "That should be [Obama's] strongest priority," says retired liberal judge Patricia Wald, "not tranquil passage" through the Senate.
Check out NEWSWEEK's gallery of the Supreme Court's historic firsts, from Roger Taney to Sonia Sotomayor.
Uncommon Knowledge
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