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One more decision now comes to President Obama's desk. He will soon have a chance to appoint a new Supreme Court justice, and that person may be on the Court long after he leaves office. As NPR first reported last night, Justice David Souter is planning to retire at the end of the Court's term.
Here's NPR legal affairs correspondent Nina Totenberg.
NINA TOTENBERG: At 69, David Souter is hardly the oldest member of the Court, but he's made clear to friends for sometime now that he wanted to leave Washington and return to his native New Hampshire. The justice has never been much of a public man, disdaining Washington's social life and declining almost all speaking invitations.
At a rare public appearance earlier this year at the American Academy of Arts & Sciences, he led his guard slip. When asked whether he's had any intellectual revelations as result of some literary or scientific work he read, the justice explained that for him at least the workload of his job is such that…
Justice DAVID SOUTER (U.S. Supreme Court): When the term of Court starts, I undergo a sort of annual intellectual lobotomy, and it lasts until the following summer when I sort of cram what I can into the summertime.
TOTENBERG: Nominated to the Court in 1990 by the first President Bush, Souter was dubbed the stealth candidate because his career as a State Supreme Court justice revealed little about his views on the legal 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.
After Souter cast a decisive vote against reversing the Roe v. Wade abortion decision in 1992, political conservatives began using Souter's name as an epithet of betrayal. Souter was not a liberal in the mold of the man he replaced, Justice William Brennan. He was more of a traditional, New England Republican moderate, sympathetic to civil rights, civil liberties, business and law enforcement, and a justice who defers to precedent.
It may be that Souter became more alienated from his Republican roots, especially in recent years, when the Supreme Court became decidedly more conservative with the addition of two new Bush appointees. After the election of Barack Obama, Souter became quite determined to retire, according to friends. And about a month ago, he let the White House know he would leave at the end of the term.
The question now is when will his decision become official, triggering the naming of a replacement and the scheduling of confirmation hearings. Senate Judiciary Committee sources said if a nomination is made in the next few weeks, there likely will be confirmation hearings this summer, allowing an easy transition when the Court reconvenes in October. On the other hand, if there's no nomination before late June or early July, confirmation hearings would likely not start until September.
With only one woman currently on the Court, it's widely expected that President Obama will name a woman to replace Souter. Among the names most often mentioned is Elena Kagan, the former Harvard Law School dean who recently won Senate confirmation as the government's chief advocate in the Supreme Court.
Although she had an easy confirmation hearing, 31 Republicans voted against her on the Senate floor, a clear GOP shot across the bow. Also mentioned are a number of lower court judges, including Diane Wood, who got to know Barack Obama when the two were law professors at the University of Chicago, and Ann Williams, an African-American, also an Obama friend and an Appeals Court judge in Chicago.
Also mentioned is Sonia Sotomayor, a judge on the Federal Appeals Court in New York, and also the governor of Michigan, Jennifer Granholm. Whoever gets the nod, it is unlikely to change the ideological makeup of the Supreme Court now dominated for the most part by conservatives.
The five-to-four balance is not likely to change because Souter was usually in the four-member liberal minority, and replacing him with another moderate liberal or even a far more liberal justice will not alter the Court's balance.
Nina Totenberg, NPR News, Washington.
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