Souter's Retiring

[balli]

http://www.npr.org/templates/story/s...ryId=103694193

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

The court has completed hearing oral arguments for the year and will be issuing rulings and opinions until the end of June.

Souter is expected to remain on the bench until a successor has been chosen and confirmed, which may or may not be accomplished before the court reconvenes in October.

At 69, Souter is nowhere near the oldest member of the court, but he has made clear to friends for some time now that he wanted to leave Washington, a city he has never liked, and to 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.

Souter's retirement would give President Obama his first appointment to the high court, and most observers expect that he will appoint a woman.

The court currently has one female justice — Ruth Bader Ginsburg, who is recovering from cancer surgery.

Obama was elected with strong support from women.

An Obama pick would not likely change the ideological makeup of the court. Souter, though appointed by the first President Bush, generally votes with the more liberal members of the court, a group of four that is in a rather consistent minority.

[FromWayDowntown]

An interesting first appointment for President Obama. With Ginsberg and Stevens also being likely to retire soon to give this President the opportunity to appoint their replacements as well, there's an opportunity for Obama to really replenish what is perceived as the leftward-leaning block of the Court -- Breyer, Souter, Ginsberg, Stevens -- and solidify it for the long term.

That's exactly what George W. Bush did with Roberts and Alito; it's exactly what Reagan did with Scalia and Kennedy; it's exactly what Clinton did with Breyer and Ginsberg; it's exactly what George H.W. Bush tried to do with Souter and Thomas.

[Winehole23]

The key word being tried. Judges don't always turn out to be what politicians want them to be. Judges tend to think for themselves. They can be unpredictable. Reagan didn't get *what he wanted* with Kennedy, nor Bush with Souter.

[TheProfessor]

Sonia Sotomayor's name is getting batted around a lot. Princeton undergrad, Yale Law School, female and Hispanic, a political moderate, nominated originally to the Southern District Court of NY by George H.W. Bush. Seems almost too perfect politically and in terms of law resume.

[DarkReign]

...and once again, Michigan's Governor Jennifer Granholm is being talked about as a replacement. Harvard Law, State District Attorney, Federal Prosecutor then Governor.

[FaithInOne]

Let's get an ACLU biatch up in hur.

[clambake]

harriet miers.

[Kermit]

harriet miers.

Of all the monumental ups, this one is the funniest.

[FromWayDowntown]

A few thoughts about Justice Souter's retirement from some who practice before the Supreme Court and closely follow the ins ution and its people:

http://www.scotusblog.com/wp/justice...-go-from-here/

Justice Souter’s Retirement and Where We Go from Here
Friday, May 1st, 2009 1:14 am | Tom Goldstein |

Legal Washington’s best-kept secret leaked this afternoon, and by 10pm Pete Williams and then Nina Totenberg had confirmed that Justice Souter intends to retire. That fact - or presumed fact, given how the message was communicated to the White House - was very closely held there, at the Senate, and at the Court - closely enough that preparations for the nomination of a successor were substantially restrained - among a group that not only was under strict orders but also genuinely appreciated both the Justice’s privacy and his efforts to signal his intentions in advance to the President and the Senate Judiciary Committee. The future of the Court is a sufficiently explosive topic that a leak over time unfortunately became essentially inevitable, particularly given that it was a known fact by at least some at the highest levels of each branch of government. It was in fact only a coincidence of timing that the secret held until after arguments for this Term concluded yesterday.

It is pure speculation to say why the Justice decided to retire now. He is a private man, and those of us who do not talk with him - which includes perhaps every pundit - ought to acknowledge the severe limits on what we actually know rather than presume and infer. But it is no stretch to say that it was likely an easier decision for him than it has been for many of his predecessors. Justice Souter’s sense of self has never seemed bound up in his status. It is likely that once it became clear that Justice Ginsburg would fully recover and serve for many years more, this seemed like an appropriate time to retire from the Court.

Justice Souter still may offer no confirmation that tonight’s stories are correct, much less a formal resignation. His concern is for the ins ution, and the last thing he will have wanted is to draw attention to himself and to create a distraction while the Term continues. He provided a signal, and likely hoped for the best that it would stay confidential. On the other hand, he is not one for gamesmanship and, assuming his mind truly is finally decided, may conclude that it is best to be done with any remaining ambiguity. The model of Justices O’Connor and Marshall - a resignation effective upon the confirmation of a successor (almost certainly this summer) - seems the most likely path he would take, given that there is no urgency to his departure.

At the White House (where counsel were aware and at work) and the Senate Judiciary Committee (where they were not), the pace of discussions and preparations for a successor will now increase considerably. And that is where most of the attention of the press and the public will immediately turn - forwards, rather than reflecting back on the Justice and his work. He won’t mind, but it is still too bad. Washington always angles for a leak (tonight) and a fight (this summer). This is the point at which the collegiality and insularity of the Court meet the compe iveness of the media and vindictiveness of partisan politics.

Justice Souter obviously has a significant legacy at the Supreme Court. I will mention some of the cases in a moment. But it is important to pause and recognize he will go down in history as a gentleman and (rare these days) a scholar who (even more rare) sees no need to show that fact off. He has the kindness of Justice Stevens and the smile of the late Justice Brennan, but he also is perfectly capable of confronting an advocate who was out-and-out wrong. He is respectful but direct. You know where you stand with him. His colleagues and the Court staff will miss him when he leaves.

So far, he has written 156 majority opinions for the Court. There isn’t the space here - or the time for reflection - to catalog them in order of importance or interest. But in cons utional law, his opinion for five Justices in McCreary County v. ACLU, 545 U.S. 844 (2005), stands at the knife’s edge of stating a controlling rule of law in Establishment Clause cases that may not survive the departure of Sandra Day O’Connor. His opinion in the right of speech and association in Hurley v. Irish-American, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995), is among the most often cited in the field. For a time, he was a member of a majority to more broadly uphold campaign finance regulation, as reflected in his opinions in FEC v. Beaumont, 539 U.S. 146 (2003), FEC v. Colorado Republican Fed. Campaign Comm., 533 U.S. 431 (2001), and Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377 (1999). For a man with a somewhat distant relationship with technology, his opinion in MGM Studios v. Grokster, 545 U.S. 913 (2005), is surpassingly important to the future of copyright, and opinions like Verizon Comms. v. FCC, 535 U.S. 467 (2002), play a central role in telecommunications regulation. Others decided critical questions of procedure. The defense bar hopes that Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), is a landmark ruling on the obligation to set forth detailed allegations in a complaint. Beyond his opinions, the Justice’s vote has often been essential, as when he played a central role in the troika in Planned Parenthood v. Casey, 505 U.S. 833 (1992), that upheld the core of Roe v. Wade.

Justice Souter’s 123 dissenting opinions also tell you a great deal about him and his leading role, particularly among the Justices on the left, on the Court. In fact, with greater control over his own writing assignments, the Justice’s own opinions in the very most significant cases tended to be in dissent. This Term, for example, he has written the lead dissent in some of the Court’s most difficult and divisive cases - 14 Penn Plaza v. Pyett, 129 S. Ct. 1456 (2009), Bartlett v. Strickland, 129 S. Ct. 1231 (2009), and Waddington v. Sarausad, 129 S. Ct. 823 (2009). Particularly significant, but often overlooked, is his dissent in Kansas v. Marsh, 548 U.S. 163 (2006), which was the strongest statement by the left of the Court of their concerns with the death penalty arising from evidence that wrongly convicted individuals were being executed.

What next then? The President must pick a nominee under overhanging threats and bombast from both the left (which fears disappointment) and the right (which has no genuine influence on the process, but recognizes the great importance of the Court).

So first we learn about the President. It seems obvious to me that he is focused on qualifications. By contrast, we have very little to go on in terms of the weight the President places on ideology in judicial nominations, which is a big deal. Judge Diane Wood and Professor Pam Karlan are both Democrats and geniuses, but they see a reasonable amount of the law differently.

Progressives come to this nomination with admiration for President Bush’s (eventual, in one instance) ability to identify and confirm exceptionally qualified nominees who also hold strong jurisprudential views that (in the case of Justice Alito) moved the Court. They contrast that commitment to shaping the Court with what they remember as President Clinton’s unwillingness to invest his “capital” in liberal nominees in the mold of Bill Brennan and Thurgood Marshall. They will want to believe that the make-up of the Senate - particularly given the coincidentally timed switch of Senator Specter to the Democratic Party and the anticipated arrival of Al Franken - gives the Administration essentially a free hand to appoint whomever it wants. And they will believe that it is possible that the same may not be true by the time another nomination rolls around in later years. Progressives will push very hard.

We can say that it has to be a woman. The gender imbalance on the Court is absurd, and the Administration will like the perceived contrast with President Bush’s failure to address it. Race and ethnicity seem less important. As the best known Hispanic judge appointed by a Democrat, Sonia Sotomayor will be seriously considered. But she will only be nominated if the President genuinely believes her to be the best candidate; racial politics can be addressed through other nominations.

So, who? Who knows? Given my premise that qualifications are extremely important - i.e., that the President will want to pick someone who stacks up evenly with the Chief Justice and Justice Alito - a truly shocking surprise is very unlikely. The number of people who have the horsepower and reputation to truly deserve a Supreme Court appointment is pretty small. My most recent post on this speculation is here, and I don’t have much to add to it. (The President and I don’t talk as often as we should.) I said then that “[t]he three obvious candidates are Elena Kagan (SG), Sonia Sotomayor (CA2), and Diane Wood (CA7). The sleeper candidate is Michigan Governor Jennifer Granholm.” Governor Granholm subsequently said she was not interested, but you never know. Through all his Chicago ties, including to the University of Chicago Law School, the President will be very familiar with Judge Wood’s reputation for brilliance. The President also knows Elena Kagan (who has her own Chicago ties) and the Administration will be very conscious of the fact that General Kagan is ten years younger and has the reputation from Harvard of working very well and persuasively among an ideologically diverse group.

The President will be personally invested and involved. I think it will come down to interviews between Wood, Kagan, Sotomayor, and two more out-of-the-box candidates, perhaps one with significant political experience and another who is a progressive visionary. And the President will decide personally based on his own very individual view of how he wants to shape the Court. There is no rush to make an announcement. The Term will conclude at the very end of June, and it makes no sense - and there is no pressure - to announce a choice for a successor before the Justice has completed this Term’s work. That leaves two months, which is plenty of time, and the President can reasonably be expected in very early July to name his nominee. Hearings would be held in early or mid- August (the Administration and Senate Democrats will want them sooner rather than later, in order to not leave the nominee hanging), when the rest of Washington hoped to be on vacation away from the heat.

[FromWayDowntown]

http://volokh.com/archives/archive_2...tml#1241187999

Friday, May 1, 2009
[Jonathan Adler, May 1, 2009 at 10:26am]

How Souter's Replacement Could Change the Court: The prevailing wisdom is that replacing Justice David Souter will not have a significant impact on the Supreme Court's balance. For most high-profile, ideologically charged issues, this is probably true (at least in the near term). Justice Souter is generally quite "liberal," and anyone President Obama nominates is likely to be quite liberal as well. That said, I think there are two ways in which Souter's replacement could have a significant effect on the Court's balance and doctrinal trajectory.

First, Justice Souter's replacement could alter the balance of the Court on a number of issues on which the Court is closely divided, but does not split along the traditional left-right fault line. Consider, for example, this term's decision in Arizona v. Gant. Justice Stevens' majority limiting the search-incident-to-arrest exception to the warrant requirement was joined by Justices Ginsburg, Souter, Scalia and Thomas. Justice Breyer was in dissent. Other criminal law cases, including the sentencing guideline cases, have produced similar lineups. So, if Justice Souter's replacement were to align with Justice Breyer, instead of Justices Stevens and Ginsburg, we could have a significant shift on the Court. Indeed, replacing Justice Souter with a justice who follows Justice Breyer's approach to criminal law issues could actually move the Court to the "right" (at least on these issues).

Replacing Justice Souter could also have a significant effect is on the Court's decisions on the due process limitations on punitive damages. Justice Souter joined the five justice majorities in BMW v. Gore and Philip Morris v. Williams limiting the award of punitives on due process grounds, and also wrote the Court's majority in Exxon Shipping v. Baker, which limited punitive damages under the federal common law of maritime. Again, "liberal" justices are split on this question. Here, however, if Souter's replacement were to align with Justices Stevens and Ginsburg, it is likely that the Court's recent punitive damages cases could be overturned.

A second way that Justice Souter's replacement could alter the balance on the Court would occur behind the scenes. Adding a new justice inevitably alters the internal dynamic on the Court, and some justices are better coalition builders than others. Insofar as Justice Souter's replacement is more (or less) able to forge consensus and draft opinions that command wide support, this could also have a significant effect on the Court. Even were President Obama to replace Justice Souter with someone who votes identically on every issue, the nomination could still have a significant impact (especially over time) if the new justice is more able to influence his or her colleagues.

Many on the Left say they want President Obama to nominate a "liberal Scalia". I would say they should be careful what they wish for. Justice Scalia's opinions may be well-written and intellectually satisfying, but the same things that can make his opinions fun to read may prevent his opinions in many areas from commanding a majority of the Court. To take one example, do ented by Professor Richard Lazarus shows in this paper, Justice Scalia's insistence on stronger bright-line rules for regulatory takings prevented him from creating a workable majority and produced "precedent heavy on strong rhetoric yet light on staying power." It's not an accident there's a book of his opinions called Scalia Dissents. So, perhaps paradoxically, a liberal nominee who demonstrates less ideological fervor, but is more strategic and conciliatory, might be more successful at moving the Court leftward.

[FromWayDowntown]

http://volokh.com/archives/archive_2...tml#1241150395

[Ilya Somin, April 30, 2009 at 11:59pm]

Why Souter's Replacement Matters Even if She has the Exact Same Views as Souter: The MSNBC story on liberal Justice David Souter's likely retirement states that his departure "isn't likely to change the court's liberal-conservative composition, because his successor will almost certainly be moderate to liberal." The Washington Post similarly reports that "Souter's retirement is unlikely to alter the ideological balance on the closely divided court because Obama is certain to replace the liberal-leaning justice with someone with similar views." More generally, we often hear claims that the appointment of new justices whose interpretive philosophy is similar to those they replace is relatively unimportant because it won't affect the balance of the Court.

This conventional wisdom is wrong. 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.

In theory, if Scalia is replaced by a liberal in 2012 and Souter himself remains on the Court, the ideological balance will be exactly the same as if Souter were replaced by a younger ideological clone of himself in 2009. However, the "younger" part is a key distinction between the two. Souter's replacement is likely to be much younger than he is, and will therefore probably be around a lot longer than Souter would have been had he chosen not to retire this year. Thus, he or (more likely) she will be affecting the Court's ideological balance for many years longer than Souter would have been able to do.

For these reasons, Souter's replacement will matter a great deal even if he or she has little immediate impact on the ideological balance on the Court.

[clambake]

you said he's not about gamesmanship.

if he doesn't retire, could that be a sign that he's not happy with his possible replacement that's being kicked around in the back room?

[FromWayDowntown]

At this point, I don't think Souter will do anything other than retire, regardless of the iden y of his successor.

[TheProfessor]

...and once again, Michigan's Governor Jennifer Granholm is being talked about as a replacement. Harvard Law, State District Attorney, Federal Prosecutor then Governor.

Obama stated during the primaries that Justice Warren was his ideal jurist, with his political experience as governor of California before being appointed. It makes sense.

[implacable44]

who cares .. he will apoint a liberal left - pro-abortion anti-gun "yes" man and probably a transnationalist -- looking to international law to establish American Law...I fear the appointment of HArold Koh more than this replacement.

[clambake]

who cares .. he will apoint a liberal left - pro-abortion anti-gun "yes" man and probably a transnationalist -- looking to international law to establish American Law...I fear the appointment of HArold Koh more than this replacement.

harriet doesn't have a chance?

[FromWayDowntown]

who cares .. he will apoint a liberal left - pro-abortion anti-gun "yes" man and probably a transnationalist -- looking to international law to establish American Law...I fear the appointment of HArold Koh more than this replacement.

Yeah, and just think, he's replacing one of those.

The horror of the zero-sum game at the Supreme Court!

[ChumpDumper]

who cares

Yeah, there are so many other, more important political issues to care about like a bust that was returned to it's collection three months ago.

[implacable44]

harriet doesn't have a chance?

Are you saying that you doubt his chances to be confirmed ?

[ChumpDumper]

I fear the appointment of HArold Koh more than this replacement.

Yeah, Koh destroyed America when he worked for Reagan.

[implacable44]

Yeah, Koh destroyed America when he worked for Reagan.

you are comparing the position of attorney advisor to the OLG to that of legal advisor to the state department under Himary Clinton where he will have opportunity to influence international treaties -- and you know how the cons ution regards international treaties - don't you ?

[ChumpDumper]

you are comparing the position of attorney advisor to the OLG to that of legal advisor to the state department under Himary Clinton where he will have opportunity to influence international treaties -- and you know how the cons ution regards international treaties - don't you ?

If Ted Olson, John Bellinger and Ken Starr(!) don't have a problem with his appointment, why specifically do you?

[implacable44]

If Ted Olson, John Bellinger and Ken Starr(!) don't have a problem with his appointment, why specifically do you?

I am sorry - should Ted Olson, Ken Starr and John Bellinger be the basis of all the opinions in the world? I mean, if they say it is okay - we should all just fall in line ?

[ChumpDumper]

I am sorry - should Ted Olson, Ken Starr and John Bellinger be the basis of all the opinions in the world? I mean, if they say it is okay - we should all just fall in line ?

They certainly are more reputable than you.

Why specifically do you have a problem with this nomination?

I mean besides the fact Glenn Beck, et.al., told you to....

[implacable44]

They are ? oh well I will take that under advisement...

Why don't you have a problem with his nomination besides the fact that Obama, Olberman , et.al., told you not to ?

I already told you why. Try to read.