Souter Reportedly Planning to Retire From High Court - Justice Might Stay Until Nominee Confirmed

Souter Reportedly Planning to Retire From High Court - Justice Might Stay Until Nominee Confirmed
By Robert Barnes
Copyright by The Washington Post
Friday, May 1, 2009
http://www.washingtonpost.com/wp-dyn/content/article/2009/04/30/AR2009043004361.html?wpisrc=newsletter&wpisrc=newsletter&wpisrc=newsletter


Justice David H. Souter, the Republican-appointed New England jurist who has become a reliable member of the liberal bloc on the Supreme Court, has told friends that he plans to retire, according to a government official.

Court spokeswoman Kathleen L. Arberg said last night that Souter had no comment following reports that he plans to step down at the end of the court's term in June. Souter would be likely to stay on until a replacement could be confirmed. The court's next term starts in October.

Souter's colleagues on the bench have been trying to talk him out of retiring, according to a source close to the court.

A vacancy would give President Obama his first chance to begin reshaping the court but would not likely change the dynamic on a bench that is often evenly split between the liberal and conservative blocs, with moderate conservative Justice Anthony M. Kennedy often holding the pivotal role.

Although Obama's choice would probably be far different from the 69-year-old intellectual bachelor from New Hampshire, the replacement would almost surely have a similar ideological outlook. Most court observers also believe Obama would be likely to choose a woman as his first appointment, since Justice Ruth Bader Ginsburg is the lone female among the nine justices.

Most often mentioned as possibilities are two appeals judges, Sonia Sotomayor of New York and Diane P. Wood of Chicago, along with Obama's new solicitor general, Elena Kagan. Vice President Biden has been charged with drawing up a list of possible nominees, according to the source close to the court.

After Obama's victory, the question quickly became who would be the first to leave the court, and all speculation revolved around the three longest-serving liberals. But Justice John Paul Stevens, 89, the longest-serving justice on the current court, gave no indication he was ready to leave.

Nor did Ginsburg, 76. Even after her pancreatic cancer was diagnosed this winter, she made clear her intentions to serve on the court until well into her 80s. The cancer was detected extremely early and successfully removed, she said, and she has undergone what she describes as a precautionary round of chemotherapy.

Souter was considered by some to be the most likely, because of his well-known disdain for the ways of Washington. The speculation has been fueled in recent weeks because Souter had not hired clerks for the court's next term. That was tempered by the fact that Souter traditionally is the last justice to hire for the coming term.

When the court is not in session, Souter is back home in Weare, a small town west of Concord where he has a modest 200-year-old farmhouse on eight acres.

A friend who ran into him last summer in Concord said he was surprised by just how strongly Souter spoke about wanting to leave Washington. "He said, 'If Obama wins, I'll be the first one to retire,' " said the friend, who spoke on the condition of anonymity because Souter had not yet announced a retirement.

White House advisers have been drafting lists of potential replacements virtually since Obama took office, and the list is said to also include Stanford University law professor Kathleen M. Sullivan, Kim McLane Wardlaw of the U.S. Court of Appeals for the 9th Circuit, Michigan Gov. Jennifer M. Granholm and Georgia Supreme Court Chief Justice Leah Ward Sears. Souter, who has been on the court since October 1990, was nominated by President George H.W. Bush on July 25, 1990, to a seat vacated by William J. Brennan Jr. He was confirmed by the Senate on Oct. 2, 1990.

Another friend of Souter's, Concord lawyer Wilbur "Bill" Glahn, was not surprised by the reports of retirement. Glahn, who has known Souter for 35 years after working under him in the New Hampshire attorney general's office, said he had seen Souter several times in early April. He would not divulge the exact nature of their talks about Souter's plans but said it was clear for years what direction Souter was heading.

"I certainly have known it was something he had thought about for years," Glahn said.

Glahn said it was hard to know just what Souter's thinking was on the timing of a retirement. "Anyone's timing in this situation is their timing," he said. Glahn noted that Souter was such a committed New Hampshire-ite that he had climbed all 47 of the 4,000-foot peaks in the White Mountains.

Souter was little known when nominated, with a slight record of legal writings and a lack of controversial stands that was seen as an asset. Bush's chief of staff John E. Sununu, also from New Hampshire, called him a "home run for conservatives."

Staff writer Alec MacGillis contributed to this report.





US Supreme Court Justice Souter to retire
By Andrew Ward in Washington
Copyright The Financial Times Limited 2009
Published: May 1 2009 13:05 | Last updated: May 1 2009 15:41
http://www.ft.com/cms/s/0/a8eb6382-3647-11de-af40-00144feabdc0.html


President Barack Obama launched a search for his first Supreme Court pick on Friday after Justice David Souter made it known he was planning to step down.

Mr Souter’s retirement clears a path for the president to place his own imprint on the court and strengthen its liberal-leaning membership after two conservative picks by President George W. Bush.

The shake-up will not radically alter the court’s balance because Mr Souter is considered one of the more liberal justices, but it creates an opportunity for Mr Obama to entrench liberal influence by appointing a younger replacement who could serve for decades.

Supreme Court nominations are among the most significant decisions a US president can make because justices are appointed for life and rule on the most contentious constitutional issues ranging from abortion rights to the disputed 2000 presidential election.

The nine-member court has often split in 5-4 votes between conservative and liberal factions on a range of issues.

During his own election campaign, Mr Obama said that, should a vacancy arise, he would pick someone with a strong judicial record who also had “a sense of what real-world folks are going through”.

On the explosive issue of abortion, he said he would not impose a “litmus test” but stressed that he personally believed the Roe versus Wade case that legalised abortion was “rightly decided”.

Whoever Mr Obama chooses is sure to face tough scrutiny from Republicans but his ability to force through his nomination was strengthened by this week’s defection of Arlen Specter, the former Republican senator for Pennsylvania, to the Democrats.

Mr Specter’s switch, together with almost certain victory for Democrat Al Franken in the disputed Minnesota senate race, would provide Democrats with the 60 votes they need to override Republican opposition to any nominee.

Most of the favourites to be picked are women because of an assumption that Mr Obama would want to bring greater gender balance to the court, which currently counts Ruth Bader Ginsberg as its only woman. Among those mentioned as potential candidates include Elena Kagan, who Mr Obama appointed as Solicitor General, and appeals court judges Sonia Sotomayor and Diane Wood.

Mr Obama is also sure to face pressure to diversify the court’s racial makeup, with Hispanics particularly keen for representation given that there is already an African-American justice in Clarence Thomas.

Men mentioned as possible picks include Deval Patrick, the former Massachusetts governor, US District Judge Ruben Castillo, and Cass Sunstein, a Harvard law professor.

As a former professor of constitutional law and editor of the Harvard Law Review, Mr Obama has extensive experience and connections to draw from as he ponders his choice.

Mr Souter was appointed by Republican president George H. W. Bush in 1990 but surprised and disappointed many conservatives by taking relatively liberal positions on issues including abortion rights and affirmative action. He also voted to limit use of the death penalty and backed legal rights for detainees held at the US military base in Guantánamo Bay, Cuba.

When the second President Bush faced his first pick for the court, “No More Souters” was adopted as a rallying cry by activists pressing for a conservative choice.

Government officials confirmed that Mr Souter was planning to step down at the end of the current court session in June. The White House said it had not received “formal communication” of his retirement.

At 69, Mr Souter is not among the oldest members of the court but he had made no secret of his desire to return to his home state of New Hampshire where he was once attorney-general and a judge.

It had been widely expected that Ms Ginsberg would be the first justice to retire during the Obama administration after she was diagnosed with pancreatic cancer earlier this year. But she has since returned to work after surgery and indicated that she plans to stay on.

The replacement for Mr Souter will mark the first Supreme Court justice named by a Democrat since 1994, when President Bill Clinton nominated Justice Stephen Breyer. His successor, George W. Bush, named two justices: Chief Justice John Roberts and Justice Samuel Alito.

Within hours of Mr Souter’s retirement becoming known, activist groups on the left and right had launched lobbying campaigns to influence Mr Obama’s choice. Marge Baker, executive vice president of People For the American Way, a liberal group, said the president should nominate someone who would continue Mr Souter’s work “to defend our personal freedoms and ensure that every person has equal access to justice”.

“In November, President Obama was given a mandate to appoint federal judges who are committed to our core constitutional values of justice, equality, and opportunity for all,” she said. “That is exactly what he should do.”

Anti-abortion groups vowed to fight any pro-abortion pick. “This nomination represents a test for a president who has expressed a public commitment to reducing abortions while pursuing an aggressive pro-abortion agenda. Appointing an abortion radical to the Court - someone who believes social activism trumps the Constitution - further undermines efforts to reduce abortion,” said Charmaine Yoest, president of Americans United for Life.

Who will Obama pick?
Speculation over Supreme Court vacancies is one of Washington’s favourite parlour games. As a former professor of constitutional law and editor of the Harvard Law Review, President Barack Obama will relish the choice. Many experts predict he will pick a woman to bring greater gender balance to the court. Here are some of the potential contenders:

Elena Kagan, 49, US Solicitor General; former associate White House counsel in the Clinton administration and dean of Harvard Law School before Mr Obama tapped her to become Solicitor General; critics highlight her lack of judicial experience.

Sonia Sotomayor, 54, US Appeals Court judge; would be first Hispanic on the Supreme Court; sparked controversy by upholding a decision to throw out a firefighter promotions test because no African-Americans qualified.

Diane Wood, 58, US Appeals Court judge; appointed to the federal bench by President Bill Clinton in 1995; knows Mr Obama from their time teaching together at the University of Chicago Law School; oldest of the leading contenders – age could count against her.