Federal Courts and Nominations

Souter retirement gives Obama early Supreme Court pick


The retirement of US Supreme Court Justice David Souter, expected in late June, will not significantly alter the balance of power between liberal and conservative wings on the high court. But that does not mean it won’t be significant.

In considering his first nomination to the court, President Obama is likely to focus on three factors – gender, youth, and liberal intellectual heft.

The frontrunner for the nomination is believed to be Elena Kagan, 49, the former dean of Harvard Law School who was confirmed as the nation’s first female solicitor general on March 19. The Senate vote was 61 to 31.

Also mentioned as potential candidates are Diane Wood, 58, and Sonia Sotomayor, 54, both federal appeals court judges.

Speculation about Mr. Souter’s possible retirement had increased as the court’s current term moved deeper into the spring. He had not yet hired law clerks for the 2009-2010 term. And the justice had made no secret of his preference for the wooded bliss of New Hampshire over the bustle and political heat of Washington.

Souter long ago suggested to friends that he intended to leave the court while still in his 60s. Sept. 17 will mark his 70th birthday.

A “stealth candidate”

David Hackett Souter was born in Melrose, Mass. He is a former Rhodes Scholar and graduate of both Harvard College and Harvard Law School. He served in New Hampshire state government as attorney general and was appointed to the New Hampshire Supreme Court in 1983.

Seven years later, he became a federal appeals court judge on the First US Circuit Court of Appeals in Boston. He served in the job for two months before President George H.W. Bush nominated him to fill the US Supreme Court seat left vacant by Justice William Brennan’s sudden retirement.

Souter joined the high court on Oct. 9, 1990.

He will be remembered by many conservatives as a high court “stealth candidate” that backfired.

With abortion as a hot political issue, the first Bush administration had sought to avoid a replay of the bitter confirmation hearings surrounding President Reagan’s unsuccessful nomination of Robert Bork to the high court. Instead of selecting nominees with well-established public positions on controversial issues, vetting officials at the first Bush White House sought individuals whom they perceived as reliable conservatives but who had no blatant paper trail proving it.

Souter had the backing of New Hampshire Sen. Warren Rudman and Bush chief of staff and former New Hampshire Gov. John Sununu.

The moment of truth came in the 1992 abortion case, Planned Parenthood v. Casey, where conservatives expected a ruling striking down Roe v. Wade. Instead, Souter joined Justices Anthony Kennedy and Sandra Day O’Connor to fashion a compromise decision that ultimately affirmed a constitutional right to abortion.

Souter’s jurisprudence continued to move to the left in later years, providing a reliable vote for the court’s liberal wing on issues such as affirmative action, campaign finance reform, and the death penalty.

As reports of Souter’s retirement plans swept through Washington, the White House and key members of the Senate began preparations for what will become the first major political test of the Obama administration – finding and confirming a liberal replacement.

Succession debate

With the recent shift of Sen. Arlen Specter (D) of Pennsylvania to the Democratic Party and the anticipated seating of Minnesota’s Al Franken, the White House appears to have good prospects of winning confirmation of its chosen nominee.

But as the Obama administration’s transition has demonstrated, the Senate confirmation process can sometimes unearth a few surprises.

A nomination announcement could come in late June or early July. Senate hearings are likely to be held during the summer with an eye toward confirmation before the start of the Supreme Court’s next term in October.

If the nomination and confirmation process extends longer, Souter could continue to serve in the next term pending confirmation of his successor.

The debate over the next nominee has already begun.

Wendy Long of the conservative Judicial Confirmation Network says the three most-mentioned potential nominees – Kagan, Wood, and Sotomayor – are all far-left “radicals.”

“If Obama holds to his campaign promise to appoint a justice who rules based on her own “deepest values” and what’s in her own “heart” – instead of what is in the Constitution and laws – he will be the first American President who has made lawlessness an explicit standard for Supreme Court justices,” she says.

Dr. Charmaine Yoest, president of Americans United for Life, urged Obama to avoid a “pro-abortion litmus test.” “We will work to oppose any nominee for the Supreme Court who will read the Freedom of Choice Act into the Constitution in order to elevate abortion to a fundamental right on the same plane as freedom of speech,” she said in a statement.

A president’s high court appointments influence the law long after the appointing president has left office, said Nan Aron, president of the liberal group Alliance for Justice. “The president can look to a broad array of legal talent to select a nominee who not only has an excellent record in the law, but also a respect for core constitutional values and a commitment to equal justice for all, not just a few,” she said in a statement.

Doug Kendall, president of the liberal Constitutional Accountability Center, in a statement urged Obama to nominate a successor to Souter who “deeply respects the Constitution’s text and history and will be vigilant in protecting constitutionally-secured individual rights.”

Mr. Kendall added, “We can think of no better tribute to David Souter.”

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