Impact Of Souter Retirement Examined

Correction May 4, 2009

In some broadcasts, we referred to a ruling concerning Exxon's oil spill "in Prudhoe Bay, Alaska." The spill was actually in Prince William Sound.

Supreme Court Justice David Souter has told President Obama he intends to retire at the end of the current term, which will come next month. Souter has been on the bench for 19 years and become a mainstay of the court's liberal wing. That was not what President George H. W. Bush expected when he appointed him in 1990.

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From NPR News, this is ALL THINGS CONSIDERED. I'm Robert Siegel.

Supreme Court Justice David Souter formally announced his retirement today in a letter delivered to President Obama. Souter's departure plans, first reported by NPR last night, gave the president his first opportunity to name a new justice. NPR legal affair correspondent Nina Totenberg reports.

NINA TOTENBERG: Shortly after receiving Justice Souter's letter and talking to him on the phone, the president came to the White House Press Room to praise the retiring justice for his fair mindedness, independence and compassion. And then the president laid out his criteria for a nominee: someone dedicated to the rule of law, someone who knows the limits of the judicial role and someone with empathy.

President BARACK OBAMA: I will seek somebody with a sharp and independent mind and a record of excellence and integrity. I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a casebook. It is also about how our laws affect the daily realities of people's lives.

TOTENBERG: Names of potential nominees have been circulating wildly around Washington today. With only one woman currently on the court, most observers expect the woman, and perhaps a minority. Among the names prominently mentioned: the newly confirmed solicitor general and former Harvard Law School dean Elena Kagan, federal judges Diane Wood, Ann Williams, Sonia Sotomayor, former Stanford Law School dean Kathleen Sullivan.

But even before Justice Souter had confirmed his intention to retire, conservative groups were branding all of these as radical liberals and warning the president to expect a fight on any of them. Justice Souter, who is 69, said he intends to step down in June, at the time of the court's summer recess. That will leave the court with eight justices until a ninth is confirmed. Depending on when President Obama nominates a replacement, confirmation hearings could begin as early as July or as late as September. Senators will want time to examine the nominee's record.

Whoever is chosen, she or he is not likely to change the basic ideological balance of the court, because Souter is considered a member of the court's liberal wing. That's something conservatives have never forgiven him for. Named to the court by the first President Bush in 1990, Souter was dubbed the stealth candidate because his record on the New Hampshire Supreme Court gave few indications of this views on the hot button issues of the day. The president and his top aides, however, assured conservatives that they would not be disappointed. In the end, they were. Within just a few years, political conservatives were using Souter's name as an epithet of betrayal.

Souter, it should be said, was not a liberal in the mold of the man he replaced, Justice William Brennan. He was, as his biographer East Carolina Professor Tinsley Yarbrough put it, a traditional New England Republican conservative, one who defers to precedent, tends to defer also to business, has a slightly prosecutorial bent, but a justice who has an expansive view of civil liberties and civil rights. That meant that on a court that had been marching steadily to the right with each Republican appointment after 1980, Souter found himself, more often than not, aligned with the court's moderate to liberal wing.

David Hackett Souter, raised on a farm in rural East Weare, New Hampshire, was Rhodes scholar and Harvard Law School graduate. A lifelong Republican and a great, great grandson of the man who moved the nomination of Abraham Lincoln, Souter, early in his career, went to work for New Hampshire's Republican State Attorney General Warren Rudman, eventually replacing Rudman in that job. After that, he was appointed a state trial judge, promoted to the State Supreme Court where he served for 12 years, and then to the Federal Appeals Court, where he served for just a few months before being to the US Supreme Court.

Souter's nomination was the stuff of movies: unknown judge is plucked from obscurity and catapulted into the national spotlight. Just two days after the unexpected retirement of Justice William Brennan, Souter got a call from the White House asking him to come to Washington.

When Souter's longtime mentor and friend Senator Warren Rudman dropped the judge off at the airport later that day for the trip to DC, Souter suddenly turned to him in horror.

Mr. WARREN RUDMAN (Former Republican Senator, New Hampshire; Former State Attorney General, New Hampshire): And he said, oh, my goodness. He said Warren, I've got $3 on me. And so I gave David $100, and I've told a lot of people I really thought that I ought to put a sign around his neck that said take this man off the plane at Washington.

TOTENBERG: The next day, Souter found himself in the White House, being interviewed by the president. Less than two hours later, the New Englander was summoned back to the Oval Office and offered the nomination. Short thereafter, a dazed looking David Souter stood next to President Bush as his nomination was announced.

President GEORGE H.W. BUSH: Judge Souter, I believe with all my heart, will prove a most worthy member of the court.

TOTENBERG: If David Souter looked shell-shocked that day, his demeanor was far different at his confirmation hearing, when he wowed the committee with his measured intelligence and grasp of legal questions. After three days on the witness stand, his nomination was confirmed 90 to nine.

The confirmation, it turned out, was child's play compared to the work of the court. As Souter would later put it, it was as if a tidal wave hit him upon his arrival. After a rocky first year, though, his ferocious intellect kicked in. He soon became one of the court's most dogged questioners, and behind the scenes, a force to be reckoned with. Most prominently, he was an essential part of the so-called troika that, in 1992, was responsible for reaffirming the core holding of the court's abortion decision, Roe versus Wade.

Whether or not the court was right in its decision 19 years earlier, said Souter, the court must now presume the abortion decision was correct in the name of continuity and a stable society based on stable law.

Mr. DAVID SOUTER (Former Supreme Court Justice): A decision to overrule Roe's essential holding under the existing circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the court's legitimacy and to the nation's commitment to the rule of law.

TOTENBERG: That same year, Souter, a deeply religious man, would write a concurring opinion in the separation of church and state case, in which he staked out his view that the Constitution's framers intended that government be forbidden to prefer one religion over another, and that government also is forbidden to prefer religion over non-religion.

Souter made the same point in 2005, when he wrote the court's majority opinion, ruling unconstitutional the posting of the 10 Commandments in a Kentucky courthouse.

Mr. SOUTER: The divisiveness in religion in current public life is indisputable. This is no time to turn our back on a principle of neutrality that has served religious liberty and freedom of conscience so well.

TOTENBERG: Notably, he was among the court's four dissenters in Bush versus Gore, the case that decided the 2000 election. Indeed, he was reportedly so upset by what he viewed as the political nature of the court's decision that he contemplated retiring then. He was more conservative in cases involving criminal law and business law. The author of a number of big money business decisions, he wrote the court's five-to-three ruling, striking down as excessive a $2.5 billion punitive damage award against Exxon for a massive oil spill in Alaska.

Souter was a proudly old-fashioned kind of justice. He wrote his opinions in long hand, disdained computers, and when he was asked about cameras in the courtroom, he said that if cameras came into the Supreme Court, they would have to roll over his dead body.

Unlike his colleagues, Souter did not write books of give lots of speeches. He hated Washington social life and avoided it entirely. A lifelong bachelor, he was monastic in his court work, and anxious to drive home to New Hampshire and his friends there when the court term ended each June.

He was, said the late Justice Harry Blackman, perhaps the only one of us who is normal. That may be why he decided, after nearly two decades on the Supreme Court, to leave the city he loathed and go back to the state he loves.

Nina Totenberg, NPR News, Washington.

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Battle Looms Over Choosing Souter's Successor

Let the battle begin — or maybe not.

Just hours after news broke that Supreme Court Justice David Souter plans to retire, conservative groups launched a fusillade of attacks branding as "radical" and "hard left" candidates believed to be on the White House short list.

And anti-abortion groups have already promised war if President Obama, as expected, nominates a replacement who supports legalized abortion — as Souter does.

But despite the clamor, the political reality in a Washington controlled by Democrats strongly suggests that skirmishes with the right will be relegated to a springtime sideshow, leaving the president fully in control of the main stage.

"Whoever Obama picks will be confirmed," says Jonathan Adler, a court expert and professor at Case Western Reserve University School of Law.

The caveats, he added, include lapses in the vetting process, mismanagement of the nomination or the unlikely event that Republicans can or will mount a battle in a Senate where Democrats are verging on securing a 60-vote filibuster-proof majority.

Even though the odds of derailing an Obama pick may be long, conservatives are rallying their base with warnings that the court is in danger of shifting to the left.

Ed Whelan of the Ethics and Public Policy Center says Souter's replacement could provide the pivotal fifth vote for hot-button policies conservatives oppose. Those include, he says, same-sex marriage, stripping "under God" out of the Pledge of Allegiance, sanctioning human cloning and "micromanaging the government's war powers."

What Obama Wants

In a surprise appearance at the daily White House press briefing Friday afternoon, Obama said he had spoken with Souter, and lauded the justice's service.

Obama praised Souter for his "integrity, equanimity and compassion," his work ethic and sense of humor.

And he spoke about what he is looking for in a new justice.

"I will seek someone who understands that justice isn't about some abstract legal theory or footnotes in a case book," Obama said. "It is also about how our laws affect the daily realities of peoples' lives — whether they can make a living, care for their families, whether they feel safe in their homes and welcome in their own nation."

"I view that quality of empathy, of understanding and identifying with peoples' hopes and struggles as an essential ingredient for arriving at just decisions and outcomes," he said.

Keeping The Ideological Mix

However, most court observers think it unlikely that any Obama appointment to replace the liberal Souter will change the ideological mix of the court.

So the more pressing questions surround what Obama's pick will say about the new president, who taught constitutional law at the University of Chicago Law School, as he begins to reshape a divided court with what could be the first of several appointments in coming years.

Will he, as expected, add another woman — only the third in history — to the Supreme Court? Will he make history by naming the country's first Hispanic justice?

And will he listen to the urgings of his party's left wing and pick a nominee who matches the combative judicial temperament of conservative Justice Antonin Scalia?

Looking For Hints

There are strong hints at the answers to all these questions.

In his book The Audacity of Hope, Obama called the Constitution a "living document" that "envisions a road map by which we marry passion to reason, the ideal of individual freedom to the demands of the community."

As a senator questioning then-chief justice nominee John Roberts four years ago, Obama admonished Roberts for a lack of empathy after he likened the role of a judge to that of an umpire.

Ninety-five percent of cases can be judged on intellect, Obama has said, but in the other 5 percent of cases you've "got to look at what is in the justices' heart."

Women Lead The List

Though he could surprise court watchers, as he looks for a justice with what he considers the right mix of intellect and heart, Obama is expected to pick a woman to join Justice Ruth Bader Ginsburg on the bench. Ginsburg has been the lone female jurist since trailblazing Justice Sandra Day O'Connor stepped down in 2005.

"He would have to use up a fair amount of credit with constituencies that matter to him if he doesn't nominate a woman," says Mark Tushnet, a Harvard Law School professor and Supreme Court historian.

Among the top tier of possible nominees are Sonia Sotomayor, a U.S. Court of Appeals judge for the 2nd Circuit; Diane Wood, a U.S. Court of Appeals judge for the 7th Circuit; and Elaine Kagan, a former Harvard Law School dean recently appointed U.S. solicitor general.

Also being mentioned are Kim McLain Wardlaw, a U.S. Court of Appeals judge for the 9th Circuit, and Leah Ward Sears, chief justice of the Georgia Supreme Court.

Sotomayor and Wardlaw are of Hispanic descent; Sears is African-American.

Avoiding An All-Out Battle

That top tier does not include a Scalia-type personality, says Adler, which would allow Obama a more efficient path through the confirmation process — something he could be looking for as he fights real battles on other fronts, from national security to health care policy.

The short-listers aren't "wild-eyed or radical," Adler says, And, he says, they appear to be, like Obama's appellate nominees so far, "fairly reliable liberal justices with the pedigree and background that make them difficult to oppose."

Wendy Long of the conservative Judicial Confirmation Network disagrees, characterizing Wood, Sotomayor and Kagen as "radicals."

"The president and senators need to be careful about, respectively, nominating and appointing a hard-left judicial activist," says Long, who cautioned against choosing a candidate based on what "is in her own heart instead of what is in the Constitution and laws."

The Odds Favor Obama

The president's political instincts, and his usual pragmatic approach to tasks, suggest that he won't pick a nominee with a temperament similar to Scalia's.

Adler argues that steering away from a provocateur will work in the president's favor in his quest to shape the bench. "The justice with the loudest roar is not always the one who is most influential," Adler says. "That's easy to forget when reading an opinion and enjoying its rhetorical sophistication."

Even so, Obama's political constraints are minimal, says Tushnet. "The political situation is quite favorable," he says, adding that Obama has proved himself "really good as a politician."

Tushnet is among court watchers who say they believe the president can go as far out on a limb with his nomination as he likes.

"My prediction would be that he wouldn't really care" about using up political capital, Tushnet says.

The path for an Obama nominee in the Senate is near barrier-free: Democrats, who just added former GOP Sen. Arlen Specter of Pennsylvania to their ranks, appear on the brink of securing a 60-vote filibuster-proof majority before voting to confirm a new nominee.

And that 60th vote, Minnesota's Al Franken, whose recount win will be reviewed next month by that state's Supreme Court, could be added before a confirmation vote is taken.

The president pledged to consult with members of both parties, and expects to have a new justice confirmed by the time the high court opens its fall session on the first Monday in October.

At this early point in the process, many Democrats are expecting a historic nomination — a woman, a Hispanic or both. But Supreme Court nominations are the ultimate presidential prerogative, and only Obama knows whether there's a wild card candidate out there who may make his or her way to the high court.

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