Who Will Succeed Justice Souter?

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President Obama announced last week the retirement of Supreme Court Justice David Souter at the end of the court's current term. Since then, the legal world has been alive with speculation about the president's first nominee to the ultimate job in jurisprudence.


It's been one week now since Supreme Court Justice David Souter's announcement that he will retire at the end of this term. And, as one might expect, there's been a lot of speculation about who will succeed him. So we've asked NPR's Nina Totenberg to bring us up to speed. Hello, Nina.

NINA TOTENBERG: Hi there, Michele.

NORRIS: Is there a difference between the situation now facing Barack Obama and the situation that President Bush faced when he saw two vacancies on the high court?

TOTENBERG: Well, first of all, we're in the first year of the first Obama term, assuming there is even a second one. President Bush was in his second term of office. He'd named a lot of lower court judges. And this president, in some ways, this is not great for him, because the easy pick would be someone who's already been confirmed. They want somebody in her 50's. It's pretty much assumed this is going to be a woman. And there hasn't been any Democratic appointees to the federal courts - appellate courts for all practical purposes - for nearly a decade. So they're stuck with people who are, by definition, if they're Democrats, very close to being 60 or older. The most often mentioned are two judges, Sonia Sotomayor from New York and Diane Wood from Chicago.

NORRIS: Now, could you tell us a little bit about each of those women and what's going on, also, behind the scenes right now.

TOTENBERG: Well, each of these judges has her promoters. And they're going around, not only promoting their candidate, but in some cases savaging the other candidates. I have to tell you that occasionally, I've had to cover my mouth to keep from laughing out loud, it's so obvious.

Sonia Sotomayor is on everyone's list because she's both female and Hispanic and has a great story. Her father was a factory worker who died when she was nine. Now there was a nasty piece about her on the New Republic's Web site by Jeff Rosen, portraying her as both intellectually deficient and not working and playing well with her colleagues. That has prompted her defenders to come to the rescue, noting among other things, that she graduated summa cum laude from Princeton and that she graduated from Yale Law School and was on the law review there. Also leading the list, as I mentioned, is Diane Wood, a judge on the Federal Court of Appeals in Chicago who taught at the University of Chicago when Barack Obama did. She has a lot of business support. She's the coauthor of the leading text book on trade regulation.

And then, there's a third person, the only recently confirmed, and that is our new Solicitor General Elena Kagan, the former dean of Harvard Law School, and - by a decade - younger than the other two. And because she was most recently vetted, like 14 seconds ago, this is by the far the safest, except for thing: There were 31 votes against her, including Arlen Specter.

NORRIS: So what about the people who've not been confirmed?

TOTENBERG: Well, they're politicians. They're academics. And there are actually a lot of star lawyers - even minority star lawyers - who work on Wall Street, for big, corporate firms, have really achieved a lot and have served in key positions in other Democratic administrations, either in state government or in the Clinton administration.

NORRIS: Is there anything else that strikes you as different about the process in the Obama administration, particularly when you compare it with the Bush administration?

TOTENBERG: The role of the groups. The conservative groups were, you know, brought in in huge conference calls from the get-go in the Bush administration. That was sort of part and parcel of their strategy. The liberal groups were supposed to meet at the White House this week, and their meeting was cancelled.

NORRIS: Thank you, Nina.

TOTENBERG: Thank you.

NORRIS: That's NPR's Nina Totenberg.

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