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Bench Memos

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Unsolicited Advice



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Justice Stevens’s retirement has been long expected, but there are some interesting lessons to be drawn from how he chose to step down.  Unlike Justice O’Connor, Stevens chose to retire at the end of the term and not to stay on until the confirmation of his successor. This puts President Obama in something of a bind.  Obama has stated that he wants to have the confirmation process finished in time for the fall term, but if he is to meet his personal deadline, he has only one shot to get this right. A few things the president should remember as he is considering the new vacancy:

1. Extremist candidates are defeated. If President Obama nominates a liberal ideologue he will lose the backing of his Senate allies who must answer to the voters directly this fall. Just ask Dawn Johnsen, the left-winger whose nomination to the head DOJ’s Office of Legal Counsel went down in flames today.

2. Open is as open does. If the president wants a speedy confirmation, he cannot nominate someone who will play games with the process like Goodwin Liu, Obama’s kooky Ninth Circuit nominee who somehow forget to disclose upwards of 100 documents from his required submissions to the Senate.  If not for the sleuthing of intrepid bloggers, many of Liu’s agenda-driven legal theories may have never been exposed.  It remains to be seen how many more smoking guns Liu has “inadvertently omitted” from his disclosures. 

3. Vetting matters. This administration has had serious problems with vetting nominees to important government posts. Hint to Obama: remember to ask your candidates if they paid their taxes.

If Justice Stevens were concerned with having a clone of himself nominated, he would have followed O’Connor’s flexible road to retirement and given Obama all the time he needed to appoint and confirm a true-blue liberal.  But he didn’t, which will make for an interesting summer indeed.

 – Carrie Severino is chief counsel of the Judicial Crisis Network.



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