Stuart Taylor, Jr. Proves He's A Smarty Pants Yet Again

Resident Imus in the Morning legal expert Stuart Taylor, Jr. told Imus the retirement of Supreme Court Justice John Paul Stevens means there will be either a confirmation skirmish or a battle, depends on who President Obama nominates to replace him.

“It probably does not mean any dramatic change in the direction of the Supreme Court,” Taylor stipulated. “Since Stevens is as liberal as anyone on the court now, and Obama will presumably replace him with somebody pretty liberal.”

Stevens, it should be noted, became far more liberal than President Gerald Ford (who appointed him in 1975) or anybody else ever expected. Initially viewed as moderate and even conservative on issues like affirmative action and the death penalty, Stevens moved to the left in the 1980s and 1990s, reversing his position on the death penalty and become more sympathetic to the rights of criminal defendants.

“Stevens has always said he thinks he’s pretty much stayed in the same place while the Court has moved to the right around him as new appointments came on,” said Taylor, a columnist for National Journal. “And the Court probably has moved to the right some, but he’s move to the left too.”

One name being bandied about as Stevens’s replacement is current Solicitor General Elena Kagan, a former Harvard Law School Dean known for recruiting respected Conservatives to teach on campus during her tenure. “That’s one reason she’s got a fair amount of goodwill with Conservatives, especially her former colleagues,” said Taylor.

Also on the short list: Merrick Garland, a federal appeals court judge in Washington, DC (“probably the most moderate and easily confirmed of the candidates,” according to Taylor), and Diane Wood, a federal appeals court judge in Chicago who is considered the most liberal of the candidates.

Imus predicted that the last thing Obama wants to do this summer is wage a battle over a Supreme Court appointee, and Taylor agreed.  “That’s why the kind of candidates Liberals would be most enthusiastic about…the odds makers are betting against them,” he said, citing State Department Legal Advisor Harold Coe and Stanford Law Professor Pam Carlin as examples.

Taylor’s personal preference is Garland, and not just because the two have been friends since law school. “He’s really got astonishingly good reviews from lawyers arguing in front of him for having all the good qualities a judge is supposed to have: good temperament, fair to everybody, open-minded,” said Taylor.

Kagan would also be a good choice, but she’s a bit of a question mark. “She’s been very careful to prevent her views from becoming public,” said Taylor. The last time that happened was with former Justice David Souter, who was nominated by the first President Bush because he wouldn’t be a target for criticism and turned out to be much more liberal than anyone imagined.

-Julie Kanfer