With barely any time to recuperate from the last war, should the troops prepare for the Supreme Court nomination battlefield again? The Associated Press reported this morning that Justice John Paul Stevens has hired only one law clerk for the term that begins in October 2010. Customarily by now, Stevens would have hired his full complement of four clerks for the term that begins a year hence. According to the story, Stevens confirmed that he has hired only one clerk for 2010, but would not comment on the significance of the fact or whether he plans to retire.
Though the timing of clerk hiring by justices has triggered speculation -- often inaccurate -- about retirement plans in the past, some who know or have clerked for Stevens say that today's news is telling, and that it may well signal a current plan, subject to change, to retire next summer. By then Stevens will be 90, and he may have decided the timing is right for a variety of reasons. President Gerald Ford appointed him to the Court in 1975.
"I wouldn't be surprised" if Stevens retires next summer, said Bill Barnhart, author of a forthcoming biography of the justice. Barnhart added, however, that when he last spoke with Stevens in May, "he gave no indication of any impairment or lack of enthusiasm for the job. He seemed very energized." Still, Stevens might view the end of next term as an attractive target for departure, Barnhart said.
"His pattern is fairly consistent to hire a whole slew of clerks by the end of the term," said former Stevens clerk Joseph Thai, a law professor at the University of Oklahoma. Some justices hire their full allotment of clerks for a future term even if they are thinking of retiring, but Thai thinks that "Justice Stevens is not that kind of guy. He is very considerate of the personal lives of his clerks, and he would not want to give people the false hope that they will be working for a sitting justice." That would explain why he would hire one clerk for the 2010 term; retired justices are allowed to hire one clerk instead of four.
Thai, who stresses he is not privy to any inside information about Stevens' plans, said that for years, Stevens has given the clerks he hires a standard "Miranda warning," advising them that because of his age, it is possible he'll be compelled to retire before they can start working for him. The fact that he has seemingly gone a step further to actually refrain from hiring more than one clerk is significant, said Thai.
The political considerations that enter into a justice's decision to retire are also difficult to calculate. But if Stevens wanted to retire during the Obama administration, then next summer might also be his best opening for the next few years. The fate of the Democratic majority in the Senate after the 2010 election is uncertain.
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