I agree with those who argue that President Obama will be hard pressed not to appoint someone who will help shift the Court’s balance rightward. Already the media buzz would suggest– incorrectly– that Stevens’ replacement helps Obama reshape the Court in his own left/socialistic balance. Taking socialism and left out of the equation, the Court won’t shift to the left until a right/conservative justice retires and is replaced by an Obama appointee, even if that appointee is a moderate, a likely guess.
Justice Sotomayor’s appointment replaced Justice Souter with someone roughly his equivalent on the ideological balance sheet.
The successor to Justice Stevens is likely to be someone to his right, unless President Obama sees fit to take a stand against the republicans in the Senate. My guess is he is going to hold his fire and political capital for another day. Rather, Obama is likely to choose someone with solid credentials, who he thinks will be easily approved by the Senate. His choice will likely be someone whose positions on executive power and civil liberties are to the right of Stevens, and quite frankly support the president’s continuing pattern of executive power excesses, which he inherited from Bush. This means it is likely Obama will end up selecting Elena Kagen or perhaps Cass Sunstein, folks that Glenn Greenwald correctly observes, will mark the rightward turn of the Court and support a pro-executive power tilt.
I would hope that Obama selects someone like Pamela Karlan, Diane Wood or Harold Koh, all of which would do little more than maintain the current Court balance. If he wants someone with political experience on the court, I’m thinking Jennifer Granholm, or even Hillary Clinton. A Clinton on the Court would surely help shift the discourse if not the actual balance of power or ideology.
Koulflo Memo 