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Tuesday round-up

In the wake of the weekend’s interviews with Justice Stevens concerning his possible retirement, reporters and commentators discuss possible successors to Justice Stevens, and in particular the much-publicized “short list” of candidates consisting of Solicitor General Elena Kagan and Judges Diane Wood and Merrick Garland.  At the AP, Mark Sherman notes possible demographic considerations that could go into President Obama’s decision, including race, age, gender, religion, and educational background.   Sherman also notes that whichever candidate is eventually nominated will “be hard pressed to immediately replicate [Justice] Stevens’ success in forging majorities.” And at CNN, Bill Mears notes that though many are treating Justice Stevens’ retirement as inevitable, “several close friends suggest [he] may wish to stay for another year, and several former law clerks have privately encouraged him to do just that.”  In the Washington Post, Harvard Law student Dylan Matthews expresses disappointment at the reported list of frontrunners, and he opines that to significantly move the Court to the left, President Obama should select a “real William Brennan/Thurgood Marshall style liberal” or a “politician capable of whipping votes.”

Others discuss the impact that midterm elections and the nation’s political climate may have on the nomination process. At Slate, Dalia Lithwick writes that, with the exception of Judge Wood, none of the three “shortlist” names “reassure liberals that the Court will not continue to move rightward over the course of the Obama presidency,” and she concludes that the scope of the possible nominees may be limited by the prospect of a very difficult nomination process.  In the Washington Examiner, Byron York writes that the possibility of losing Senate seats in the midterm elections and filibuster a nominee means that “Democrats would like to see Stevens go now rather than later.” Andrea Stone of AOL News looks at each liberal justice to determine who might take the mantle of that wing of the court, noting that Justice Breyer “may be the leading progressive voice on the Court” and is “a prolific writer who can go word-for-word with Scalia.”

In the blogosphere, Jonathan Siegel of PrawfsBlawg weighs in on Senator Arlen Specter’s assertion that a nomination in the now-contentious Senate may be filibustered by Republicans.  Siegel calls Senator Specter’s “fear of total Senate gridlock on this appointment…an overly exaggerated fear” and writes that President Obama is more likely to have a nominee confirmed now than after midterm elections in which the Republicans may gain seats.  Douglas Berman at the Sentencing Law Blog prepares for the nomination process by recapping his posts from previous Supreme Court transition periods.  Ashby Jones at the WSJ Law Blog recaps the weekend’s heavy coverage of nomination speculation and writes that “the Court will be different with Justice Stevens gone, despite the fact that Steven’s replacement won’t tip the Court’s liberal/conservative split.”  And at Jost on Justice, Kenneth Jost analyzes Justice Stevens’s majority opinions in Graham County Soil and Water District v. United States and Padilla v. Kentucky, and he concludes that, despite frequent discussion of his retirement, Justice Stevens remains “a ‘judge’s judge,’ scrupulous in analyzing any issue from all sides. Ken Rudin at NPR’s Political Junkie blog also weighs in on possible replacements for Stevens.

Adam Liptak of The New York Times details the fallout of Bowles v. Russell for disabled veterans filing for government assistance, writing that the government’s “leisurely approach” to processing such claims makes it difficult for veterans to meet the stringent deadlines that Bowles enforced.  Liptak encourages the Court to grant in a related pending cert. petition, Henderson v. Shinseki, so that the justices can “consider whether they really meant to shut the courthouse door on veterans” in their Bowles decision.

Ashby Jones at the WSJ Law Blog and Warren Richey of the Christian Science Monitor cover the Court’s Monday decision to deny cert. in People of Bikini v. United States.  Richey also writes on the denial of cert in Jensen v. Stoot (here) and in Al-Turki v. Colorado (here).  At SCOTUSblog, Lyle Denniston also covers the “number of significant issues” that the Court chose to bypass in its Monday orders.

An editorialist at The New York Times applauds last week’s decision in Padilla v. Kentucky and concludes that the case “established a constitutional principle that will help ensure that the Sixth Amendment rights of immigrants are protected.”  At the Huffington Post, Robin Steinberg writes that the decision “a big victory [for]…public defender offices” that will contribute to what she calls “long overdue” reforms to the public defender system.


  • The ACS Blog reports that Justice Sotomayor recently hosted Elizabeth You, a high school senior with a passion for law, and invited her to see oral argument at the Court and to chat with the justice in her chambers.  You, who is battling Ewing’s sarcoma, had this special holiday gift arranged by attorney members of the Elves of Christmas Present.
  • Nicholas Greitzer of the UCLA Daily Bruin (via How Appealing) previews this month’s oral argument in Christian Legal Society v. Martinez.
  • At Concurring Opinions, Gerard Magliocca writes that the delay in releasing an opinion for Bilski v. Kappos may indicate that the Court is “considering something more ambitious than wise” in its forthcoming opinion.
  • Bob Egelko of the San Francisco Chronicle and Jessica Bernstein-Wax of the San Jose Mercury-News cover the Court’s decision to deny cert. in Bonvicino v. Hopkins.
  • Ed Whelan at the National Review writes that the political left may oppose the nomination of Solicitor General Kagan to the Supreme Court because of her views on executive power and civil liberties.
  • Tony Mauro at the BLT reports that Justice Stevens was absent from the bench for Monday’s orders, but he also notes that this is not uncommon for the justices, especially on the third Monday of an argument cycle and with no oral arguments scheduled.