by David G. Savage
Justice David H. Souter, a New Hampshire Republican who became a key liberal vote on the Supreme Court, reportedly plans to retire this summer, clearing the way for President Obama to make his first nomination to the high court.
Since the court has only one woman among its nine justices, most observers have predicted that Obama will select a woman for the first court opening. There is no obvious successor to Souter, and the administration has had just three months to sift through potential nominees.
Souter's retirement is not likely to change the court's ideological balance. He has been a reliable liberal on all of the major issues decided recently, including abortion, civil rights, religion, Guantanamo Bay detention and the death penalty. Obama is expected to appoint a replacement who holds similar views.
The justices are due to meet this morning in their private conference. Souter is expected to disclose his retirement plans to his colleagues then, court sources said.
See the full report on Souter's retirement and the implications for the court and President Barack Obama's first nominee in Tribune newspapers and here in the Swamp:
His pending departure was first reported by NPR, NBC and the Associated Press on Thursday evening. A Supreme Court spokeswoman refused to comment.
Souter's departure would come as no surprise to his colleagues and others who know him well. He has been in good health and, at 69, is not old by the standards of the high court. But he intensely dislikes Washington, has few friends in the capital and leads a solitary life. He has often said that his mood brightens when he goes home to New Hampshire.
Two of his favorite colleagues -- John Paul Stevens, 89, and Ruth Bader Ginsburg, 76 -- have been the center of retirement speculation. But Souter had not hired law clerks for the fall, leading many to suspect that he planned to step down at the end of the court term in June.
Souter has also voiced frustration with the court's conservative drift of late.
On Wednesday, he sharply questioned a lawyer who wanted the court to strike down part of the historic Voting Rights Act of 1965. Souter said the nation had made progress on civil rights but added that he did not see a radical change that would justify repealing much of the act.
Souter's pending retirement puts another important issue before Obama. The president is a former professor of constitutional law at the University of Chicago and has knowledge of the issues before the court. He also knows many lawyers and judges he could nominate.
Obama chose Elena Kagan, dean of Harvard Law School, to be solicitor general, the administration's lawyer before the court. But she has yet to argue a case.
Judge Diane Wood, an appointee of President Clinton to the U.S. 7th Circuit Court of Appeals in Chicago, is likely to be considered. She has taught at the University of Chicago and knows Obama.
Two other judges who have been mentioned as possible nominees include Sonia Sotomayor of the U.S. 2nd Circuit Court of Appeals in New York and Kim Wardlaw of the U.S. 9th Circuit Court of Appeals in California.
Liberal activists have high hopes that Obama will appoint a solid liberal. Though Clinton's appointees -- Ginsburg and Stephen G. Breyer -- have voted reliably on the liberal side, neither has been a champion of social justice in the style of Justices William J. Brennan and Thurgood Marshall.
During the campaign, Obama praised Souter as a sensible and reasonable judge who is not an ideologue.
Obama also said he wanted to appoint a justice who had empathy for real people with real problems. He suggested that some of the justices, although academically brilliant, have little understanding of those who struggle in their daily lives.
Some conservative critics countered that the first obligation of the justices is to follow the law, not to decide in favor of certain people or groups.
One intriguing possibility is that Obama will look outside the courts for a nominee. All nine current justices were appeals court judges when they were nominated. None has ever been elected a legislator or governor.
By contrast, the court in the 1950s was led by former California Gov. Earl Warren and had justices who had served in the Senate, as U.S. attorney general and in a variety of other government posts.
Souter will be remembered as one of many justices who turned out entirely different than expected. When nominated by President George H.W. Bush in 1990, he was called a reliable conservative who would vote on the right. John H. Sununu, Bush's chief of staff, referred to him as a "home run for conservatives."
But within two years, it became clear that the White House did not really know its nominee.
In 1992, Souter cast a key vote with Justices Sandra Day O'Connor and Anthony M. Kennedy to preserve Roe vs. Wade and the right to abortion.
And in the years afterward, he voted regularly with the court's liberal bloc.
This week's party switch by Pennsylvania Sen. Arlen Specter -- to become the 57th Democrat in the chamber -- may also give Obama more leeway in his selection.
When Clinton had two vacancies to fill, he chose moderate Democrats partly in deference to Republicans' ability to filibuster a choice they considered extreme.
President George W. Bush also faced the threat of a potential Democratic filibuster if he chose a nominee who was too far to the right.
Minnesota's Al Franken is expected to become the Senate's 58th Democrat once Republican Norm Coleman exhausts his court appeals in that race.
The Senate's two independents caucus with the Democrats, adding up to the 60 votes required to cut off debate and prevent a filibuster.
If Obama can count on 60 votes in the Senate, he will not face a filibuster threat.
Comments
Is this really good news for Obama? I don't think so. He gets a vicious fight to simply replace one liberal justice with another, distracting from his agenda ad potentially alienating some voter groups.
http://www.political-buzz.com/
Posted by: matt | May 1, 2009 8:26 AM
I have not always agreed with Mr. Souter's views but he is the kind of public servant that has earned my strong respect and I wish him well. He served his country with integrity.
Posted by: Robert S. | May 1, 2009 8:46 AM
A University of Chicago constitutional law professor is picking the next Supreme Court justice, at a time when the Supreme Court has been contracting Congress' power under the commerce clause and states' rights is the neo-con montra! This couldn't be more exciting!
Posted by: Eddie | May 1, 2009 9:02 AM
I'm sure his pick will have acomplishments like desire to re-write the consisitution, belief the consititution is a living document that needs to be changed to meet the current times, limits personal liberties, and of course a big fan of gay marriage.
Posted by: Red Blooded American | May 1, 2009 9:16 AM
Here's a thought: Obama should choose a Republican Senator from a state likely to replace him or her with a Democrat. For instance, either of the Maine senators might do.
If his pick was confirmed, that would increase the Democratic majoriy in the Senate, particularly desirable to Obama because Specter's vote isn't reliable, and make a Democratic filibuster against the nominee less likely because they'd be arguing against their own majority.
Posted by: DaveB | May 1, 2009 9:20 AM
Sorry, " . . . Democratic majority in the Senate . . ."
I do my best proofreading after I've pressed the "Post" button.
Posted by: DaveB | May 1, 2009 9:22 AM
Hope whoever he picks has paid their taxes
Posted by: Chicagoan | May 1, 2009 9:32 AM
Wouldn't Nino Scalia like to spend more time duck hunting and using foul language inside a church? Wouldn't Clarence Thomas like to spend more time with his video collection? Time for those two to retire.
Posted by: Patrick | May 1, 2009 10:15 AM
"We have heard of the impious doctrine in the old world, that the people were made for kings, not kings for the people. Is the same doctrine to be revived in the new, in another shape -- that the solid happiness of the people is to be sacrificed to the views of political institutions of a different form? It is too early for politicians to presume on our forgetting that the public good, the real welfare of the great body of the people, is the supreme object to be pursued; and that no form of government whatever has any other value than as it may be fitted for the attainment of this object."
--James Madison, Federalist No. 45
Posted by: Joe Lunchbox Lawyer | May 1, 2009 10:18 AM
God help us all!
Posted by: BDD | May 1, 2009 10:40 AM
Ayers is available.
Posted by: Greg | May 1, 2009 10:50 AM
Red Blooded American - I assume, from your post, you are opposed to same-sex marriage. Yet, I find it startling that you would think that someone who is in favor of allowing such to also be in favor of limiting personal liberties.
As someone who is in favor of the personal liberties afforded in the Constitution, I would think you would be in favor of same-sex marriage, in that denying it is a limitation on personal liberties, for strictly political/religious reasons.
Personal liberties are supposed to be for everyone, not just people like you. I certainly hope Obama's nominee understands this.
Posted by: x-wizard | May 1, 2009 10:59 AM
Here's a thought: Obama should choose a Republican Senator from a state likely to replace him or her with a Democrat. For instance, either of the Maine senators might do.
If his pick was confirmed, that would increase the Democratic majoriy in the Senate, particularly desirable to Obama because Specter's vote isn't reliable, and make a Democratic filibuster against the nominee less likely because they'd be arguing against their own majority.
Posted by: DaveB | May 1, 2009 9:20 A
Don't agree-
Would create more socialism.
Posted by: Inky | May 1, 2009 11:06 AM
Just to be a contrarian, why not either the Porno Judge (Kosinski) or the Torture Judge (Bybee) from the 9th Cir.?
That would spice things up a bit.
Either would provide a rip snortin' confirmation hearing......
Posted by: Milton Friedman | May 1, 2009 11:15 AM
Better check with the unions about Sotomayor.
She's the only federal judge alive today who ever entered a labor injunction.
Judge Castillo would be a different perspective--a judge who actually knows how a trial works.
Posted by: ornery | May 1, 2009 11:19 AM
He should pick Leah Ward Sears, former Chief Justice of the GA Supreme Court. Brilliant and good common sense.
Posted by: Rick | May 1, 2009 11:23 AM
I don't expect to see the same level of Republican opposition to Obama's nominee to replace Souter that we saw Democrats give to either Roberts or Alito. I expect that any qualified liberal nominated by Barack will receive 80-90 votes (or more) in the Senate. Unlike Democrats, Senate Republicans do not have a history of opposing Democratic Supreme Court nominees on ideology reasons alone. If you don't believe me, look up the final confirmation votes for Justices Breyer and Ginsburg.
Posted by: mark | May 1, 2009 12:04 PM
Al Franken for Supreme Court Justice! the conservatives will be appoplectic...
Posted by: Lori la Liberal | May 1, 2009 12:13 PM
Al Franken for Supreme Court Justice!!!! let's give the conservatives really something to hate about!
Posted by: Lori L' instigator | May 1, 2009 12:16 PM
God help us all!
Posted by: BDD | May 1, 2009 10:40 AM
He did. He gave us Obama.
Posted by: Grandblvd03 | May 1, 2009 12:21 PM
Another very serious candidate Obama will no doubt consider is Chicagoan Ruben Castillo, who has EXCELLENT creds (Northwestern Law, etc) , handling nasty cases (including being threatened by drug lords), civil rights work, etc. etc...
Know him and his family -- not very many more intelligent, sincere, and good people than he and his family.
His only downside may be that Obama will fac criticism that he is hiring another Chicagoan, but if not our best -- and best anywhere -- than who???
Posted by: rtost | May 1, 2009 12:55 PM
I hope he picks Roland Burris. America needs Roland Burris on the Supreme Court.
Posted by: War on Bikes | May 1, 2009 1:33 PM
My first pick would be Joe Biden. But I know that diversity and political philosophy always trumps competence. The hunt is on for a gay female hispanic who will consider replacing the constitution with Islamic Law.
Posted by: Bushwacker | May 1, 2009 1:35 PM
Ron Paul for Supreme Court Justice!
Posted by: Sally | May 1, 2009 1:37 PM
* * * * *
Posted by: Milton Friedman | May 1, 2009 11:15 AM
.
You're joking, right? Bybee? People are looking to impeach that boy for torture-gate. Besides, he has no track record as a jurist, and, given his former employment record, would likely turn out to be a bad clone of Wrenchquist. You're not going to get BO to nominate him.
.
Kosinski, on the other hand, would be a great choice. He would be my choice, that’s for sure. He’s extremely knowledgeable, articulate, and a great writer to boot. If he got the appointment, reading U.S. Supreme Court cases might actually become fun again. The problem is, however, that he has a Libertarian streak a mile wide and doesn’t carry water for progressives. While I think that’s a good thing, Obama definitely won’t.
Posted by: John W. | May 1, 2009 1:48 PM
"There is no obvious successor to Souter..."
Aside from the "genius" who can't even remember the Presidential oath of office, there usually aren't any OBVIOUS successors.
It's not like there's an ACT or SAT for the SC.
Look at Thomas.
The truth is, pretty much everyone is eligible for selection.
I'd like to see Obama nominate someone from outside the legal circles.
BOB DYLAN for the Supreme Court!
Posted by: Tell the Truth | May 1, 2009 2:08 PM
mark, you have to be kidding.
Republicans continue to filibuster at a pace three times anything ever seen before, in a systematic effort to block popular reforms.
Posted by: Liberal and Proud | May 1, 2009 2:24 PM
How much do you want to bet that his appointment will have not paid taxes in the past 10 years?
Posted by: West Side Joe | May 1, 2009 3:13 PM
Perhaps a nominee could be someone who is not trained at either Harvard, Stanford or Yale.
Nothing against either school, mind you, but someone trained at a good law school outside of the Ivy League could be a good choice.
A John Paul Stevens type of fellow (Northwestern Law) would be good for the Court.
Unfortunately, Obama will be pressured by the likes of Rahm and others.
Having Biden "vet" potential nominees could be a disaster, having watched Biden oversee the Thomas confirmation hearings in 1991.
Posted by: skeptic | May 1, 2009 3:21 PM
Souter retiring surprises me. I thought the next to go would be Ginsburg because of her illness or John Paul Stevens because of his age. There wont be much of a fight here. Obama will replace a liberal with a liberal. The confirmation hearings will be a sham like they always are, with lip service paid to qualifications, etc., but the only thing anyone really cares about is how he/she would rule on abortion.
Posted by: Herbie H. | May 1, 2009 3:34 PM
I'm wondering if the appointment would even be legit. Obama continues to stonewall in the American peoples' request to show legal documentation to prove his eligibility for President.
Obama has directly spent over $680,000.00 in money from his campaign funds fighting lawsuits to show just two things: one, his long-form birth certificate (which is in the possession of HI officials)... and two, his college records and papers. Don't tell me that these would not have been fair game for Bush, Gore, Kerry, etc... Why not Obama? What makes him any different? What might one find on either document? I hope we know some day soon!
Posted by: Lori | May 1, 2009 3:37 PM
God help us all!
Posted by: BDD | May 1, 2009 10:40 AM
Sorry, kid. You're on your own. I have no interest in you because (fyi) you're not one of mine. You could give the same message to inky if you want. I'm not claiming him, either.
Posted by: GOD | May 1, 2009 4:12 PM
BOB DYLAN for the Supreme Court!
Posted by: Tell the Truth | May 1, 2009 2:08 PM
"Come senators, congressmen
Please heed the call
Don't stand in the doorway
Don't block up the hall
For he that gets hurt
Will be he who has stalled
There's a battle outside
And it is ragin'
It'll soon shake your windows
And rattle your walls
For the times they are a-changin'."
Yep, Dylan works for me.
Posted by: David J | May 1, 2009 4:38 PM
I would say Judge Castillo is the most respected federal judge in Chicago right now.
Posted by: ornery | May 1, 2009 8:34 PM