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IN THE COURTS | Supreme Court Justice Souter Expected To Announce Retirement; Move Fuels Speculation Over Obama Nominees

IN THE COURTS | Supreme Court Justice Souter Expected To Announce Retirement; Move Fuels Speculation Over Obama Nominees
[May 1, 2009]

Supreme Court Justice David Souter is expected to announce plans to retire from the Supreme Court at the end of the court's term in June, which would give President Obama the opportunity to make the first Democratic appointment to the high court in 15 years, USA Today reports (Biskupic, USA Today, 5/1). According to the Chicago Tribune, Souter is expected to officially disclose his retirement plans to his colleagues on the court during a private meeting on Friday (Savage, Chicago Tribune, 5/1). NPR.com reports that unnamed sources have confirmed that Souter will retire and has informed the White House of his plans (Totenberg, NPR.com, 4/30). Although Souter is expected to announce on Friday his intentions to retire in June, he is likely to remain on the court until his replacement is confirmed, which could mean he will remain on the court when the next term begins in October, the Washington Post reports (Barnes, Washington Post, 5/1). Supreme Court spokesperson Kathy Arberg declined to comment on Souter's decision.

Former President George H.W. Bush appointed Souter to the Supreme Court in 1990, and although John Sununu, Bush's chief of staff, predicted that Souter would be a "home run" for conservatives, most of his decisions have aligned with the liberal bloc of the court. In 1992, for instance, Souter provided a key vote in support of Planned Parenthood v. Casey, a decision upholding abortion rights. According to USA Today, Souter's resignation is unlikely to shift the balance of the court because Obama is expected to "name someone who is at least as liberal as Souter." Nonetheless, the nomination of Souter's replacement is "bound to set off an intense, politically charged competition," USA Today reports (USA Today, 5/1).

According to Politico, the Democratic control of the Senate should give Obama "wide latitude" in selecting a nominee, particularly after Sen. Arlen Specter's (Pa.) recent announcement that he intends to switch from the Republican Party to the Democratic Party. Specter's move could give the Democrats the 60-vote majority needed to prevent a Republican filibuster, provided that Democrat Al Franken is sworn in to Minnesota's open Senate seat (Allen/Gerstein, Politico, 4/30). Although Obama is likely to name a liberal as Souter's replacement, a confirmation battle from conservatives "could prove to be one more challenge" in Obama's agenda as his administration works to pass legislation on health care, energy and other major issues, the New York Times reports. According to the Times, Obama would need to act quickly to name a nominee for the Senate to hold hearings and confirm his selection in time for the next court term in October (Baker/Zeleny, New York Times, 5/1). The Wall Street Journal reports that many observers believe Obama is likely to choose a woman to replace Souter, as Justice Ruth Bader Ginsburg currently is the only woman serving on the court. In addition, Obama likely will select a candidate young enough to serve on the court for many decades, thus "bolstering the court's aging liberal faction," the Journal reports (Bravin/Perez, Wall Street Journal, 5/1).

Speculation Over Potential Nominees

Observers have suggested several possible Obama picks, including Sonia Sotomayor, a federal judge in New York who former President Clinton appointed to the Second Circuit Court of Appeals. According to Politico, even before Souter announced plans to retire, some Republican leaders said they are preparing to fight against Obama's judicial nominees, particularly if he selects Sotomayor. A Republican source said, "The GOP obviously does not have much power in D.C. these days, but just like we helped ourselves by opposing the deficit-busting stimulus, opposing left-wing nominees like her is our path back to the majority" (Politico, 4/30). NPR reports that in addition to Sotomayor, another potential nominee on the "theoretical short list" is Elena Kagan, the current solicitor general and former dean of Harvard Law School (NPR.com, 4/30). According to Politico, other names that have emerged as possible Obama nominees include Diane Wood, a judge on the Chicago-based Seventh Circuit Court of Appeals; Ann Williams, who also sits on the Seventh Circuit Court of Appeals; and Kathleen Sullivan, professor and former dean at Stanford Law School (Politico, 4/30). Other possibilities could include Kim McLane Wardlaw of the Ninth Circuit Court of Appeals, Michigan Gov. Jennifer Granholm (D) and Leah Ward Sears, Georgia Supreme Court Justice, the Post reports (Washington Post, 5/1). Politico also mentions the possible selection of Harold Koh, dean of Yale Law School and Obama's current nominee to be chief legal adviser at the Department of State; and Cass Sunstein, Obama's nominee to run the White House Office of Information and Regulatory Affairs (Politico, 4/30). In addition, Massachusetts Gov. Deval Patrick (D) and Chicago District Judge Ruben Castillo have received mentions as possible candidates (Sherman/Loven, AP/Seattle Times, 5/1).

According to a senior Obama administration official involved in the nomination process, Obama will likely consider life experience and diversity when selecting a candidate for the Supreme Court. "We're looking for diversity again, not only just in gender and ethnicity, but also in experience in the law and in life," the official said, adding that Obama "has made clear that he's looking for judges, and I think this is true for justices, who have the ability or the experience to understand the plight of real people who are in the courts." Obama during his presidential campaign also said he would look for a nominee "who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old" (Politico, 4/30). Obama during the campaign also said he would "not provide a litmus test" for nominees on the issue of abortion rights but noted that he is "somebody who believes that Roe v. Wade was rightly decided" (New York Times, 5/1).