Less than two weeks ago, Supreme Court Justice John Paul Stevens made news in a typically elliptical court way. He announced that he had hired only one─as opposed to the full complement of four─clerks for next year. Reporters and bloggers (not always the same thing) speculated that Stevens, who is approaching 90 and who has been on the court since 1975, will retire at the end of the court's spring term. But let me replace the speculation with something a little firmer. Though there are no sure things in life or judging, Stevens's legion of former clerks are convinced that he will in fact retire late next spring. Stevens is known as particularly punctual and exacting about lining up new clerks early in the year. The fact that he did not do so is a certain indication that he will step down, one of his former clerks told me this week. "There is NO WAY he would go into next year without the full group," said this clerk, who spoke on background out of respect for court tradition and the behind-the-scenes role of clerks. Another former clerk, speaking on the same condition, agreed. "He's still vigorous and I think he wants to leave the court that way," this clerk told me.
While he will have many months to ponder his choices, and it is not good form at the White House to make lists, especially so early in the process, I know that many in the legal community are rooting for Harold Koh, a former dean of the Yale Law School who is now serving as a legal adviser to the State Department. He rings all the academic bells─Harvard College and Law School and Oxford, as well as Yale─and he is a Korean-American. The court has never had an Asian-American member.
An Obama-nominated replacement for Stevens almost certainly would not alter the ideological balance of the Roberts Court.Whoever takes his place will be part of the four-member "liberal" wing that has been in the minority since President George W. Bush's two nominees made it onto the court. That four-person contingent may be in the numerical minority, but it's already clear the the newest member, Justice Sonia Sotomayor, will add to the group's fizz and feistiness. I attended a Supreme Court argument last week that, by chance, was Sotomayor's first. She showed no reticence to chime in─she did so less than a third of the way through the hearing─and she seemed utterly comfortable and in command as she asked questions and made assertions in front of a packed house. She wasn't afraid to trade philosophical barbs with Justice Antonin Scalia (the bully of the court), or to discuss fine points of precedent and procedure.
I predict a future of steel-cage jurisprudential death matches between Scalia and Sotomayor─although I have the sense that these two streetwise types will become buddies (poker, etc.) when they take their robes off.