Those disputes — involving issues like detainee rights and secrecy — throw into sharp relief the differences in the records of several leading contenders for the nomination, including Solicitor General Elena Kagan and two appeals court judges, Merrick B. Garland and Diane P. Wood.
While any plausible Democratic nominee would probably rule the same way Justice Stevens would have in many areas of law, including abortion rights and the new health care law, executive power may be an exception.
Justice Stevens was a critical vote in a five-justice faction that rejected expansive assertions of executive authority by former President George W. Bush. If his successor is more sympathetic to the vantage point of the Obama White House, the balance could shift to a new bare majority that is far more willing to uphold broad presidential powers.
“The issues in the legal battles over terrorism are going to look a lot as they have in the past for the indefinite future,” said Harold Bruff, a University of Colorado law professor and co-author of a separation-of-powers casebook. “We are likely on the razor’s edge with the current balance in the court, and I think we’ll stay there. That clearly makes this important.”
To be sure, there is little evidence that any of those Mr. Obama is considering would favor a view of presidential authority as limitless as that claimed by some on Mr. Bush’s legal team, which sought to expand executive power systematically and sometimes argued that the president, as commander in chief, could bypass laws at his discretion.
Some of those whose names have been floated for the court — like Gov. Jennifer M. Granholm of Michigan — have executive experience but no record of expressing expansive views of presidential power. Others — like Judge Sidney R. Thomas of the United States Court of Appeals for the Ninth Circuit, in San Francisco — have rarely dealt with major executive power cases, although they have a history of viewing government arguments with skepticism in other matters, like immigration appeals.
Each of the three potential nominees who have received the greatest attention — Judges Wood and Garland and Ms. Kagan — has criticized or ruled against aspects of the Bush administration’s approach. But the context, timing and forcefulness of their objections varied widely.
Of the three, Judge Wood, of the appeals court in Chicago, has the clearest record in favor of protecting civil liberties and taking a skeptical stance toward executive power. In a 2003 essay, she spoke out against approaches to counterterrorism that she said posed “a significant threat to the continued observance of the rule of law” — like giving noncitizens fewer due process rights than citizens and sacrificing individual privacy to foster intelligence-gathering.
“In a democracy, those responsible for national security (principally, of course, the executive branch) must do more than say, ‘trust us, we know best’ when they are proposing significant intrusions on liberties protected by the Constitution,” Judge Wood wrote.
And in a 2008 essay, Judge Wood wrote that “the principle is well established that extraordinary tribunals, such as military commissions, are not authorized to operate if the normal courts are open for business.”
That stance could put Judge Wood at odds with the Obama administration, which is using military commissions instead of civilian trials for some terrorism suspects. However, her remark came in the context of prosecuting civilian citizens arrested on domestic soil after a natural disaster, and might not extend to noncitizens arrested abroad and accused of being enemy fighters.
In contrast to Judge Wood, Judge Garland, of the United States Court of Appeals for the District of Columbia Circuit, did not show early public signs of skepticism about the Bush administration approach. In 2003, he joined an opinion holding that courts had no jurisdiction to hear lawsuits by detainees at the military prison at Guantánamo Bay, Cuba. A year later, a majority on the Supreme Court would reverse that short-lived Bush victory in an opinion written by Justice Stevens.
Judge Garland has also cast votes against presidential power. He apparently voted to let stand a 2003 panel decision requiring Vice President Dick Cheney to disclose his energy task force papers to a district judge, and to let stand a 2008 panel decision upholding an accounting board even though its members were not appointed by the president.
In another 2008 case, he voted to overturn the executive branch’s designation of a Guantánamo detainee as an enemy combatant. In explaining his vote, Judge Garland complained that the administration had withheld certain evidence from the courts and said that upholding the designation “under such circumstances would be to place a judicial imprimatur on an act of essentially unreviewable executive detention.”
Ms. Kagan also has a mixed record on executive powers, but one that suggests she might generally be more sympathetic toward the White House than Justice Stevens.
She worked as a White House lawyer during the Clinton administration, when it was facing off against a hostile Congress and seeking ways to act unilaterally. That experience shaped her major scholarly work, a 2001 law review article in which she explained and defended efforts by the Clinton White House to impose greater centralized control over executive agencies.
In the article, Ms. Kagan argued that even if Congress has given the authority to make a regulatory decision to an agency, the president has the power to control that decision unless a statute explicitly forbids him from interfering. She wrote that it was “ironic” that “self-professed conservatives” were associated with calling for stronger executive power in recent decades because a more robust presidency could achieve “progressive goals.”
Still, her defenders note that she also wrote, “If Congress, in a particular statute, has stated its intent with respect to presidential involvement, then that is the end of the matter.” And in 2007, she gave a speech celebrating the actions of Bush lawyers who battled the White House over the legality of the warrantless surveillance program.
That view appears to put Ms. Kagan in the camp that criticized the Bush administration for arguing that the president could bypass laws, but also left the door open to sweeping executive authorities as long as Congress can be plausibly said to have signed off on them.
Indeed, after Mr. Obama selected her to be his solicitor general, she publicly embraced an expansive interpretation of the Congressional authorization to use military force against Al Qaeda. Ms. Kagan also took a leading role on a legal team that has sought to suppress lawsuits using the state secrets privilege and fought a ruling granting habeas corpus rights to some detainees in Afghanistan.
All those cases could reach the Supreme Court. But it is not clear that appointing Ms. Kagan would give Mr. Obama an extra vote in the White House’s favor, as she might feel pressure to recuse herself from participating.
Correction: May 15, 2010
An article last Saturday about the records of several potential Supreme Court nominees on the issue of executive power overstated Judge Merrick B. Garland’s connection to a detainee’s appeal in 2005 about the Bush administration’s military commissions. The United States Court of Appeals for the District of Columbia on which Judge Garland sits referred the case to a panel of three of its judges; Judge Garland and the entire court never took up the appeal. (The panel upheld the military commissions, a decision that was appealed directly to the Supreme Court.)