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May 1, 2009

Justice Souter To Retire In June, Let The Fireworks Begin

by Doug Mataconis

Two weeks ago, we started hearing rumors that Supreme Court Justice David Souter would be retiring at the end of the current term.

Last night, those rumors were confirmed:

WASHINGTON — Justice David H. Souter plans to retire at the end of the term in June, giving President Obama his first appointment to the Supreme Court, four people informed about the decision said Thursday night.

Justice Souter, who was appointed in 1990 by a Republican president, the first George Bush, but became one of the most reliable members of the court’s liberal wing, has grown increasingly sour on Washington and intends to return to his home state, New Hampshire, according to the people briefed on his plans. One official said the decision might be announced as early as Friday.

The departure will open the first seat for a Democratic president to fill in 15 years and could prove a test of Mr. Obama’s plans for reshaping the nation’s judiciary. Confirmation battles for the Supreme Court in recent years have proved to be intensely partisan and divisive moments in Washington, but Mr. Obama has more leeway than his predecessors because his party holds such a strong majority in the Senate.

On that note, the Legal Times Blog has this early take on who might be on Obama’s short list:

During the presidential campaign in 2007, Obama made that point when he said, “Sometimes we’re only looking at academics or people who’ve been in the [lower courts]. If we can find people who have life experience and they understand what it means to be on the outside, what it means to have the system not work for them, that’s the kind of person I want on the Supreme Court.”

That said, most of the names that have been mentioned as possible Obama nominees do have judicial or academic experience. Some of those names:

– Sonia Sotomayor, a Hispanic female who sits on the U.S. Court of Appeals for the 2nd Circuit.

— Elena Kagan, the former dean of Harvard Law School who is less than two months into her tenure as the first female U.S. solicitor general.

— Harold Koh, the former Yale Law School dean and an Asian-American, whose nomination as State Department legal adviser is pending.

— Kathleen Sullivan, the former Stanford Law School dean and a partner in the New York office of Quinn Emanuel Urquhart Oliver & Hedges.

— Diane Wood, a judge on the U.S. Court of Appeals for the 7th Circuit.

— Kim Wardlaw, a judge on the U.S. Court of Appeals for the 9th Circuit who is Hispanic.

— Massachusetts Governor Deval Patrick, a former assistant U.S. attorney general for civil rights who is African-American.

The conventional wisdom is that Souter’s retirement isn’t that big a deal because his replacement is unlikely to change the ideological balance of the Court, but Ilya Somin points out that this isn’t necessarily the case:

It ignores the fact that the newly appointed justice will likely serve for many years to come, during which time the composition of the rest of the Court will change. Today, the average Supreme Court justice serves for over 26 years. Over such a lengthy tenure, there is likely to be turnover among the other justices, and the current appointee’s ideology may have a major impact on the balance of power over the long run even if its immediate effect is insignificant.

For example, let’s assume that Justice Souter’s replacement always votes exactly as Souter himself would have. So long as the rest of the Court remains the same as today, nothing will change. However, if Obama is then able to replace even one of the five more conservative justices, the balance of power would become very different than it would have been had Souter been replaced by a more conservative justice than himself. What would have been a 5-4 conservative majority will become a 5-4 liberal one. Justice Antonin Scalia, for example, is 73 and could eventually be replaced by a liberal Obama appointee – especially if Obama wins reelection in 2012. Moreover, Souter’s replacement will likely serve for decades to come. So Scalia’s possible replacement by an Obama appointee is just one of many events that could happen during the tenure of Souter’s successor that could make his or her ideology extremely important.

Somin is, of course, correct that, in the long term, the Justice that replaces Souter will have some impact on the Court, but, as a I noted when discussing the initial Souter retirement rumors two weeks ago, the short-term is an entirely different story:

Souter isn’t the only Justice who could be close to retirement. John Paul Stevens is 88 and has been on the Supreme Court for 34 years; although he was appointed by a Republican he has drifted to the left of the Court ever since and would likely be more comfortable having his replacement named by a Democrat. Additionally Ruth Bader Ginsburg is 76 and has recently not been in good health.

Of course, all three of these Justices could resign this year and their replacements would not have any real impact on the balance of the Court. The truly significant resignations would come from Anthony Kennedy, who is 73, and Antonin Scalia, who is 73.

Nonetheless, it’s entirely likely that Barack Obama will have the opportunity to name two or three new Supreme Court Justices before his first term is over.

And if he’s re-elected in 2012, there could be two or even three more on top of that. In the long run, that will be what really matters.

C/P: Below The Beltway

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1 Comment

  1. I really hope Koh isn’t picked, he is a very dangerous transnationalist. I know people like Tom Kilgannon and Ed Meese have been following him pretty closely:

    http://thesovereigntysource.wordpress.com/2009/05/06/opposition-builds-against-koh-nomination/

    Comment by SecPress — May 7, 2009 @ 9:15 am

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