Supreme Court Justice David Souter to Retire

by: Chris Bowers

Thu Apr 30, 2009 at 23:15


President Obama will be able to appoint a Supreme Court justice:

NPR has learned that Supreme Court Justice David Souter is planning to retire at the end of the current court term.

The vacancy will give President Obama his first chance to name a member of the high court and begin to shape its future direction.

At 69, Souter is nowhere near the oldest member of the court. In fact, he is in the younger half of the court's age range, with five justices older and just three younger. So far as anyone knows, he is in good health. But he has made clear to friends for some time that he wanted to leave Washington, a city he has never liked, and return to his native New Hampshire. Now, according to reliable sources, he has decided to take the plunge and has informed the White House of his decision.

Factors in his decision no doubt include the election of President Obama, who would be more likely to appoint a successor attuned to the principles Souter has followed as a moderate-to-liberal member of the court's more liberal bloc over the past two decades.

In addition, Souter was apparently satisfied that neither the court's oldest member, 89-year-old John Paul Stevens, nor its lone woman, Ruth Bader Ginsburg, who had cancer surgery over the winter, wanted to retire at the end of this term. Not wanting to cause a second vacancy, Souter apparently had waited to learn his colleagues' plans before deciding his own.

The 2008 election really was a close call. If John McCain had been able to appoint Souder's replacement, it almost certainly would have tipped the court against, among many other things, Roe vs. Wade.

It is quite possible both to appoint a more progressive Justice than Souder, and also to increase the lacking diversity on the court. Given the current balance, appointing a woman to fill Souder's position is a must, and appointing a minority woman might also be essential. Further, this might be a situation where having 60 seats in the Senate is actually useful, as any Democrats voting against President Obama's nominee from the right can easily be painted as the ultimate party backstabbers.

Chris Bowers :: Supreme Court Justice David Souter to Retire

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Supreme Court Justice David Souter to Retire | 43 comments
Age (0.00 / 0)
The Supreme Court is a lifetime appointment.  Ideally, the younger the appointee, the better.  Clarence Thomas will be haunting Supreme Courts for many years to come.  Do we have a good appointee in his/her 40s?
Neal Katyal (4.00 / 2)
Placing a woman on the court is desirable.  However, I think the current Principal Deputy Solicitor General of the United States Neal Katyal should get a look.

http://en.wikipedia.org/wiki/N...

First Indian American USSC appointment, smart as hell, tons of experience in all the right places, Breyer's clerk, 2006 Lawyer of the Year, tons of pretty good National Security legal experience (as in good guy), lead Hamdan counsel, successfully defended Affirmative Action.

From Wikipedia:

He was named Lawyer of the Year by Lawyers USA for 2006, Runner Up for Lawyer of the Year by National Law Journal, one of the top 50 Litigators in the nation by the American Lawyer Magazine, one of the 30 best living Supreme Court advocates by Washingtonian Magazine, one of the 90 Greatest Lawyers over the Last 30 Years by Legal Times, and was awarded the 2004 Pro Bono Award by the National Law Journal.

The Hamdan victory alone would give the GOPers indigestion and I would love to see how the party that gave us Thomas could argue this guy is too young.

How young?  Recently turned 38.  Do it.

Did they get you to trade your heroes for ghosts? Hot ashes for trees? Hot air for a cool breeze? And cold comfort for change?

[ Parent ]
rather, recently turned 39 (0.00 / 0)


Did they get you to trade your heroes for ghosts? Hot ashes for trees? Hot air for a cool breeze? And cold comfort for change?
[ Parent ]
Second of third pick yes (0.00 / 0)
but he needs more time to gain a reputation and experience or he'll go down in the Senate and his promising carer will go up in flames.  

John McCain: Beacuse lobbyists should have more power
[ Parent ]
Not so sure (4.00 / 2)
I agree destroying Katyal's promising career is a bad thing.  2nd or 3rd be fine by me.

It does seem to me, however, that he already has a stellar reputation and wealth of experience despite his youth.  Seems to me pretty much the entire legal community agrees, given the awards.  He has already proven his litigation props and he works really, really, hard.  Douglas was only 41 and he had far less experience.  I want a justice who breaks WODs longevity record.

Did they get you to trade your heroes for ghosts? Hot ashes for trees? Hot air for a cool breeze? And cold comfort for change?

[ Parent ]
Little record is good (4.00 / 1)
Older candidates with long legal records are more vulnerable.  Especially judges.  Opponents can pick through hundreds of written opinions to find a few choice phrases that can be used against the candidacy.  After all, Bork was sunk but Thomas made it on to the Supreme Court.
[ Parent ]
Leadership (4.00 / 4)
Someone who can be an intellectual leader and build majorities on the Court, rather than just worrying about votes.

I'd trade that for age.

Politics is the art of the possible, but that means you have to think about changing what is possible, not that you have to accept it in perpetuity.

I Second This (4.00 / 2)
I've liked Souter and wish a few others were the ones retiring. But Obama can improve on Souter by appointing someone who can build majorities even when facing the likes of Scalia, Alito, Thomas and Roberts.

We need another William Brennan. Like Souter, he was appointed by a Republican and turned out to be quite a liberal. And he emerged as a master of the 5-4 majority even when a majority of justices were conservative. Can we find somebody who can, at least eventually, be a Brennan?

[ Parent ]
Hard to tell untill they evolve on the court (4.00 / 1)
Kagan and Katyal show promise but they probably won't be the first pick. Really it's hard to judge a justice until they are on the court. Few turn out as expected.  

John McCain: Beacuse lobbyists should have more power
[ Parent ]
Brennan had Douglas, Black, Clark, Goldberg/Fortas (4.00 / 3)
The Brennan of today - if you see Brennan functionally as a consensus builder - would have to be somewhere to the right of Breyer if s/he were to appeal to Scalia, Alito, Thomas and Roberts.  

Obama's task here is not to look for a "consensus builder" on a court packed with ideologically rigid, radical conservative justices owing to decades of GOP presidents.  What we need is a intellectually robust liberal counterpoint to lay the foundation for a pro-labor, pro-consumer, anti-surveillance-state consensus on a reshaped SCOTUS.  

[ Parent ]
I'm not looking for a moderate (0.00 / 0)
I don't think Brennan was a moderate. He managed, over and over again, to persuade 4 colleagues to join him on the progressive side of the cases as hand.  
[ Parent ]
The point is (0.00 / 0)
that Brennan had a far more left-leaning court in which to maneuver than will Obama's selection.  Creating liberal consensus on a speech case with people like Black, Douglas, Goldberg et al couldn't have required much in the way of persuasion.  

It's all about historical context, and I can't see how any liberal, however persuasive, can sway ideologues like Scalia, Thomas and Alito on an abortion rights case, for example.  

[ Parent ]
actually (0.00 / 0)
The period of his tenure that I was most impressed with was 1986 to 1990. Rehnquist had been elevated to Chief Justice and the other 7 were:

Byron White
Thurgood Marshall
Harry Blackmun
John Paul Stevens
Sandra Day O'Connor
Antonin Scalia
Powell/Kennedy

Other than Brennan there were only 3 reliable liberal votes for most issues but Brennan managed to find a 4th. Some referred to this period as the Brennan Court even though Rehnquist was the chief. Others believe Brennan's influence on his fellow justices is part of the reason some of them appeared more liberal over time.

[ Parent ]
Ill take Lawrence Lessig please. <nt> (0.00 / 0)

young (0.00 / 0)
How about a gay, african-american woman? That'd be the ultimate.  
Yes, That Would Be Nice (0.00 / 0)
But we all know Obama will never do that unless there's pressure to put a black lesbian on the court. I say either a black, Asian or Hispanic female would be an ideal choice.  
[ Parent ]
How bout we forget about race/oriention etc and... (4.00 / 3)
...Pick the best legal mind to be 1/9th of an entire branch of our government.

I don't care if the person is White/Black/Yellow/Green or even Purple.  Are they the best of the best of the best when it comes to deciding the most important legal questions related to our Constitution?

[ Parent ]
??????????????????????? (4.00 / 6)

[ Parent ]
Is there a brilliant legal mind in there? (4.00 / 1)
...or any mind at all?
[ Parent ]
That's All Fine And Good (4.00 / 2)
I don't think anyone would disagree with that. However, I'm sure Obama is looking at this to see how it will play politically, guessing how the media will run with the story, and putting the first Hispanic woman on the Supreme Court will be a big win for him -- a long term win.

We can try to be all color-blind and race-neutral about this if we want, but we all know it's a lot more complex than that in American politics.

[ Parent ]
The Complexity is created by our leaders... (4.00 / 2)
...leadership matters.

If our leader makes it about "the first Purple" on the court, in my opinion, it reduce the importance of the selection.  If the leader makes it all about "the best available legal mind", that is the story.  If the person happens to be some other ethnicity or orientation, the person is more likely to attain hero/mentor status as a result, without the negative aspects and media focus on "Obama had to pick a Purple, they were a huge voting block for him in Narnia."

The more we incite this stuff, the farther we get from true equality.  Leadership matters.

Blindly suggesting racial/orientation/associative qualities and saying "he should pick one of these"...is just awful.  You have reduced the achievements of some of the greatest legal minds to the point of dismissing them entirely.  She isn't a great female Latino jurist.  She is a great jurist. Period.  

[ Parent ]
Then In That Case (4.00 / 4)
Thurgood Marshall would have never been appointed to the Supreme Court. No doubt, Marshall had one helluva legal mind, however, Lyndon Johnson made sure to appoint the first African-American to the court for more reasons than Marshall's brilliance in law. Johnson noted to Doris Kearns Goodwin that because of his choice many black parents would name their baby boys "Thurgood" (even though that didn't turn out to be the case, but you get my drift.) Johnson picked Marshall not only because of his expertise, but he picked Marshall also to make a politically point, which he stated it was, "the right thing to do, the right time to do it, the right man and the right place."

It's not reducing anything. It's acknowledging the fact that perhaps someone's racial and cultural origins may bring something different to the table than the "standard" white judges that's been appointed since the beginning. I think it's quite insulting to deny that someone's racial and cultural heritage being something that shapes their outlook and philosophy on life.

[ Parent ]
Marshall was a mediocrity (0.00 / 0)
with precious little in the way of a jurisprudential legacy and an example of the flawed "multiculturalism trumps intellectualism" formula that Obama shouldn't follow.
[ Parent ]
Best Legal Mind? (4.00 / 3)
You'd have to go back pretty far into history to find a SC nominee who anyone took seriously as the best legal mind in the country.  (Holmes or Brandeis, perhaps.) Let's at least acknowledge that if this was Obama's criteria, it would be relatively unprecedented.  

Perspective matters. Representation matters.  Merit does as well.  

I don't think these different considerations need be set against each other so starkly.  

Politics is the art of the possible, but that means you have to think about changing what is possible, not that you have to accept it in perpetuity.

[ Parent ]
Why are we respecting some artificial... (0.00 / 0)
Tradition

Leadership matters.

President Obama has said over and over again he wants to rise above the partisan bickering and do the right thing for the nation.

Isn't picking the most qualified, the most capable, the absolute best person for the job exactly how you do that?

I dare the Senate to reject such an appointment by the President.  You want to see the balance of power shift in a hurry...

[ Parent ]
Qualified? (4.00 / 3)
We're not choosing a law professor, or legal adviser.  There is no "most qualified" wholly apart from political considerations.  A great legal mind with the wrong views, for example, should be rejected.

Justices are supposed to represent us too. To do that, they shouldn't all have the same background. Diversity, in professional background, geographically, and yes, in terms of things like gender and race are not irrelevant to their job.

I wasn't suggesting we adopt tradition for its own sake - just making sure we all recognize that if critics claim that this nomination has sullied the Court and nomination process with politics, those critics are employing a fictional history.  

Politics is the art of the possible, but that means you have to think about changing what is possible, not that you have to accept it in perpetuity.

[ Parent ]
Thank You! (0.00 / 0)
That's the point I was trying to make. You were far more clear and articulate than me making this point. Thank you.
[ Parent ]
After the Meirs nomination... (0.00 / 0)
...and the Thomas confirmation hearings, is it possible to "sully the Court" any further?  You really would have to try hard for it.  

I respect that each individuals own experience is the bulk of what defines them, including their heritage.  What I don't respect is the notion that we should go in to the process with a template or a criteria emphasizing any of these traits.

Look at the end product, not the ingredients that created it.

[ Parent ]
I agree (0.00 / 0)
that you shouldn't say 'we have to choose someone who's either Latino or a woman or ....'  

I think those things are worth considering alongside their background, philosophy and intellect.  These things are threshold matters for me - once your are well qualified, other considerations come into play.  Someone who didn't have the intellect or the right philosophy should be rejected - I'd never suggest rejecting someone on those demographic categories.

Politics is the art of the possible, but that means you have to think about changing what is possible, not that you have to accept it in perpetuity.

[ Parent ]
Ha! The Meirs nomination! Truly a Twilight Zone moment, one of many experienced (4.00 / 1)
during the Bush admin.
[ Parent ]
in reality... (0.00 / 0)
...its was a pretty brilliant political tactic.  She was so overtly poor a choice, it made anyone to follow look like a superb choice.

Sadly, we the people were more disappointed by the reduction in drama in the later pick, and not nearly as concerned with the quality of the pick (making no judgments on the pick itself, just the coverage/attention of it).

[ Parent ]
Oh come on! That might have been how it played out, but Meirs has a long and deep (4.00 / 1)
relationship with GW. He wanted her to get the job. Any other take on the situation is reaching. The Meirs pick was entirely consistent with how he ran his govt.
[ Parent ]
I'm not giving GWB any additional credit... (0.00 / 0)
...but it's possible when he suggested it Rove laughed and then went "wait! that's PERFECT!" - because hate him or not, he is quite brilliant when it comes to politics.
[ Parent ]
black.. (0.00 / 0)
He probably will appoint a woman, perhaps a hispanic woman. Just a guess though.  
[ Parent ]
Souter is one of the better (if not the best and most thoughtful) Justices on the court. (4.00 / 1)
He will be missed. He is evidence that deep thinking about justice leads one to the left, not to the right. Bybee clearly never thought about anything other than his own career.
wasn't souter (0.00 / 0)
the justice that ultimately decided Bush vs. Kerry?

Yeah, nothing against the guy but we can do better.

[ Parent ]
No... (4.00 / 2)
Apparently, he was so upset over that decision, he almost resigned right then and there, but didn't want to give Bush the vacancy....

REID: Voting against us was never part of our arrangement!
SPECTER: I am altering the deal! Pray I don't alter it any further!
REID: This deal keeps getting worse all the time!
[ Parent ]
You do mean Bush v. Gore, don't you? (0.00 / 0)


sTiVo's rule: Just because YOU "wouldn't put it past 'em" doesn't prove that THEY did it.
[ Parent ]
i hate to say this but.... (0.00 / 0)
...Obama really does need to choose a woman. Gender crosses all racial/ethnic/religious lines, and 8-1 is just a silly ratio to maintain when society is basically 1-1.
Above all the pick needs to be a bona-fide progressive (0.00 / 0)
Not a typical Obama centrist - all things to all people - kind of person.  The right has mounted a 30-year ideological offensive ("strict constructionism" as a cover for racism, free market fundamentalism, etc.),  We need someone prepared to push back - strongly - against this trend.  I'm not ashamed to say "It's our turn now".  We need to appoint someone who will make the right wing go ballistic.  A long drawn out Senate fight on these issues would be an excellent forum for discussion and catharsis.  

It might even be worth losing on the first nominee, then settling for a mere moderate liberal.  That strategy worked out pretty good for Nixon.  He got Rehnquist out of the deal.  Why not our side?  We need to be about reversing the last 30 years, not accomodating to them.

A guy can wish, can't he?

sTiVo's rule: Just because YOU "wouldn't put it past 'em" doesn't prove that THEY did it.

We do need diversity on the Supreme Court (0.00 / 0)
I seem to recall that retired Justice O'Connor said that she was able to bring a different point of view to the court because her experiences in the legal profession had been quite different from the male members. Looking back, she was one of the better judges in the last dozen or so years.  I, too, believe that the next Justice must be qualified, of course, but also should reflect a different set of experiences than the majority who are on the court now.  There are a number of highly qualified women from a variety of racial and ethnic backgrounds who should be considered to fill the next vacancy.  

Mary Hester, Jupiter FL


I disagree that O'Connor has been one of the better judges. (0.00 / 0)
If you look at her history, it is characterized by a constricted viewpoint. She definitely brings a different "set of experiences," but those experiences have always been from the position of a privileged white woman. Strangely, O'Connor herself shows why diversity is necessary--because of her limitations.
[ Parent ]
yup and... (0.00 / 0)
lord_mike corrected me. Thanks.
Supreme Court Justice David Souter to Retire | 43 comments
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