On Law

Jewish World Review June 25, 2003 /25 Sivan, 5763

Justice Stevens' retirement would shake up court most

By Jan Crawford Greenburg

http://www.NewsAndOpinion.com | (KRT) Although the fevered talk of a possible retirement at the Supreme Court has centered on Chief Justice William Rehnquist and Justice Sandra Day O'Connor, sources knowledgeable about the court are quietly speculating that John Paul Stevens, the oldest and arguably most liberal justice, is considering stepping down.

If Stevens were to retire, President Bush could effect a seismic shift on the court by naming his replacement. Stevens, an 83-year-old Chicago native, anchors the court's liberal wing and is a key voice on religion, affirmative action and other civil liberties issues.

The court is narrowly divided on those and other controversial matters, often deciding them by a 5-4 vote. Replacing Stevens with a right-leaning justice would solidify the conservative bloc and diminish the importance of O'Connor, whose votes in some cases temper the positions of her four more conservative colleagues.

The outcome of church-state, affirmative action, voting rights and some abortion cases all could be different with a conservative instead of Stevens. With so much at stake, the confirmation hearing for Stevens' replacement would be, in the words of one Republican lawyer, a "death cage match."

"He's the only one (whose retirement) has the clear potential to alter the overall ideological complexion of the court," said Bradford Berenson, a Washington lawyer and a former associate counsel in the Bush White House. "No matter who the president appoints, you have a conservative in for a liberal. With the others, it's a conservative for a conservative."

Still, Berenson said he would be surprised if Stevens stepped down, despite the speculation at the court that he is considering retirement.

None of the justices have announced plans to retire, and officials in the White House and Justice Department, as well as members of the Senate Judiciary Committee, say they have not been told about any impending departures. But if there is to be a retirement announcement during Bush's term, it likely would come this week, as the court wraps up its session.

Few court watchers, however, have focused their attention on Stevens as a prospect for retirement, despite his age. He is active on the court and off, spending part of the year in Florida with his wife, and he is said to be in good health.

But more important, Stevens is generally seen as the court's most liberal member, and justices often want a like-minded president to name their replacement.

That's why observers have speculated that Rehnquist, who worked in the Nixon administration and was named chief justice by President Ronald Reagan, or O'Connor, a former Republican state senator nominated by Reagan, may want to retire during Bush's tenure.

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But sources knowledgeable about the court say it would be a mistake not to consider the prospect of Stevens stepping down. They note that he would not want to retire during next year's presidential campaign because it would be all but impossible for a replacement to be confirmed before the election. That means his next window for departure comes in two years, when he will be 85.

Moreover, Stevens was appointed by Republican President Gerald Ford and, some close to him say, considers himself a Republican in the old-world, Teddy Roosevelt mold.

"Does John Stevens think of himself as a Republican? Oh, absolutely," said Lawrence Rosenthal, a Chicago lawyer who was a Stevens law clerk in 1984. "Justice Stevens would laugh to hear himself called a liberal."

Rosenthal said Stevens often talked about how, as a child growing up in Hyde Park, Ill., he admired Chicago Alderman Charles Merriam, a good-government, reform Republican who represented the ward.

David Yalof, a political science professor at the University of Connecticut, said that historically justices have expressed a desire to retire when a like-minded president can appoint their successor. During the Reagan administration, the late Justice Thurgood Marshall reportedly told his law clerks, "If I die while that man's president, just prop me up and keep on voting."

Even justices who drifted away from the party that put them on the bench remained loyal at retirement time, Yalof said. The late Justice Lewis Powell, for example, was nominated by President Richard Nixon, but was nominally a Democrat who cast decisive votes in civil liberties cases and was in the majority in Roe vs. Wade, which legalized abortion nationwide.

Still, Powell felt he wanted a Republican to replace him, Yalof said, so he retired in 1987, and Reagan named his successor, Justice Anthony Kennedy.

On the other side, Justice Byron White, who was nominated by President John Kennedy, became quite conservative on the court when it came to civil liberties and criminal law. White dissented in Roe vs. Wade, opposed affirmative action, supported school prayer and authored a controversial opinion that upheld a Georgia sodomy law. Yet he retired during the first year of President Bill Clinton's tenure.

As Rehnquist said during a PBS interview a few years ago, "I think traditionally, Republican appointees have tended to retire during Republican administrations and Democratic appointees during Democratic administrations. It's not invariable, but there's surely a slight preference for that."

Some former Supreme Court clerks said this has less to do with partisan politics than the court itself: No justice, they say, would like to see his or her work undone by his successor.

To some extent the rancorous atmosphere on Capitol Hill, where Senate Democrats are filibustering two of Bush's appellate court nominees and threatening to do so against others, would argue in favor of a Stevens retirement. He would know that it would be difficult for Bush to get an ardent conservative to replace him.

Indeed, on Friday, Democratic presidential hopeful Sen. John Kerry, D-Mass., announced he would support a filibuster of any Supreme Court nominee who would roll back advances on a woman's right to choose abortion, on civil rights and individual liberties, and on the laws protecting workers and the environment.

But a nominee who held conservative views on those issues would not dramatically affect the law if he were replacing Rehnquist. Indeed, Republicans fear that Bush could move the court to the left if Rehnquist retired because the Senate may not confirm a nominee as conservative as the chief justice.

"If a conservative justice retired like Chief Justice Rehnquist, you'd have less concern by Senate Democrats because you wouldn't be affecting the balance of the court," said John Yoo, a law professor at the University of California-Berkeley and visiting scholar with the American Enterprise Institute.

Still, interest groups already have mobilized to fight nominees they would consider too conservative to replace Rehnquist or the more moderate O'Connor. The retirement of Stevens would dramatically intensify the battle.

"This would be the replacement of a liberal justice with a conservative justice and would tip the balance of the court on all kinds of cases," Yoo said. "If a conservative justice replaced Stevens, you could very likely see a different court in areas like partial birth abortion, religion, affirmative action and voting rights."

For example, the court in 2000 struck down a state law banning a type of abortion procedure by a 5-4 vote, with Stevens in the majority. That issue is brewing again, since Bush has vowed to support a federal law banning the same procedure, which opponents call "partial-birth abortion."

"It would remove the most dynamic justice from that side," Yoo said.

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© 2003, Knight Ridder/Tribune Information Services