A couple weeks back, I wrote a post called “Souter Retiring?“ The speculation was apparently well founded, as several outlets are now reporting that Justice David Souter will in fact step down at the end of the current session in June.
NPR’s Nina Totenberg makes the interesting observation that, “At 69, Souter is nowhere near the oldest member of the court. In fact, he is in the younger half of the court’s age range, with five justices older and just three younger. So far as anyone knows, he is in good health. But he has made clear to friends for some time that he wanted to leave Washington, a city he has never liked, and return to his native New Hampshire.”
Additionally, she’s undoubtedly correct that “Factors in his decision no doubt include the election of President Obama, who would be more likely to appoint a successor attuned to the principles Souter has followed as a moderate-to-liberal member of the court’s more liberal bloc over the past two decades.” Further, he wanted to make sure no one else was going to retire and create the chaos of two vacancies.
Of course, as Peter Baker and Jeff Zeleny note for NYT, this will be President Obama’s first chance to appoint a Justice (something, incidentally, that Jimmy Carter never got). I think they’re basically right that, with a very strong Democratic majority in the Senate and the fact that Souter is arguably the most liberal member of the Court should combine to make this relatively smooth.
William Jacobson, though, points to an odd procedural twist in the Senate rules by which “ironically, Specter’s defection may give Republicans the ability to filibuster judicial nominees at the Judiciary Committee level, so the nominees never get out of committee.” Essentially, at least one member of the minority party must agree to end debate in the committee and, now that Specter is a Democrat, that leaves nothing but conservative Republicans: “Orrin Hatch, Chuck Grassley, Jon Kyl, Jeff Sessions, Lindsey Graham, John Cornyn, and Tom Coburn.“ Presuming Obama doesn’t appoint a Lani Guinier type, which would be out of character, my guess is that this proves no more contentious than, say, the Alito confirmation.
Souter is, by all accounts, a decent man and a good public servant. He was, alas, one of the great disappointments of the George H.W. Bush presidency. To be sure, Bush was a mainline Republican rather than a Movement Conservative, but Souter wound up substantially to the left of where he was expected to be. They often do.
It’s also fascinating that a 69-year-old in good health is below the median agewise on the Court and that neither 89-year-old John Paul Stevens nor 76-year-old Ruth Bader Ginsburg, who is battling pancreatic cancer, even seriously considered retirement. Then again, Supreme Court Associate Justice is probably the best job in American government, combining interesting work, extraordinary power, relative anonymity, and immense job security.
