Justice David Souter Retires from the Supreme Court

By Kevin Fayle on May 01, 2009 | Last updated on March 21, 2019

Let the nomination games begin:

After 19 years on the nation's highest court, Justice David Souter will retire from the Supreme Court after the conclusion of the Court's business in June, according to a source close to the justice.

Souter will finally be able to leave Washington DC - a city for which the Justice made no attempt to conceal his disdain - once and for all and return permanently to his beloved New Hampshire.
The first President Bush appointed Souter to the Supreme Court in 1990, filling the vacancy created by William Brennan's retirement.  Despite getting the nod from a Republican president, however, Souter aligned himself with the liberal wing of the Supreme Court on controversial decisions.  He wrote many opinions, both for the majority and the dissent, that met the words and ideas of Justice Antonin Scalia - the Supreme Court's resident conservative firebrand - head on.

Souter was known as an intelligent, outgoing, personable bachelor, but he lived a rather spartan life during the Court's term and avoided the Washington social scene.  Souter regarded with town with thinly veiled contempt, calling his position on the Supreme Court the "the world's best job in the world's worst city."

His dislike of DC may have been the reason that Souter decided to retire.  He's certainly not the oldest justice, and he's a regular jogger and considered to be in great shape.

He couldn't have picked a more interesting time to retire. 

Once President Obama picks a replacement for Souter, the Senate Judiciary Committee will hold hearings to determine whether or not to support the nomination.

Until Tuesday, Pennsylvania Senator Arlen Specter was the ranking Republican on that committee, but Specter's announcement that he was shifting his allegiances to the Democratic side of the aisle has thrown the Judiciary Committee into disarray.  Senators Orin Hatch (R-UT) and Jeff Sessions (R-AL) have been suggested as possible replacements.  Hatch is the next-most-senior Republican, but internal rules suggest that Sessions will end up with the position.

Specter's defection might make the nomination process extremely difficult for Obama's pick.  In order to end debate on a motion and bring it to a vote, The Judiciary Committee rules state that "debate shall be terminated if the motion to bring the matter to a vote without further debate passes with ten votes in the affirmative, one of which must be cast by the minority" (emphasis added.)

Until he left the minority party, that vote would have been Specter's.  Now it's unclear who among the remaining Republicans on the committee will agree to break a committee filibuster if the situation should arise.

Another interesting wildcard in all this is the still-undetermined Minnesota Senate seat.  The last vote count has Al Franken, a Democrat, winning the election over Norm Coleman, a Republican, by a few hundred votes.  Coleman has challenged the results and Franken won an initial court victory, but Coleman has hinted that he may appeal the matter all the way up to, well, the US Supreme Court. 

Which brings us full circle, since a Franken victory together with the Specter defection would give the Democrats 60 seats and the power to override any filibuster mounted by the Republicans in opposition to the Supreme Court nominee. 

Obama will likely have a pick ready to go as soon as Souter announces his retirement, and it generally takes about a month to initiate hearings in the Judiciary Committee after that.  Say another two weeks for the committee to vote on the nominee (assuming the Republicans don't block the vote), and we're looking at a vote before the full Senate sometime in August, assuming that the Senate delays its traditional recess during that month, which is likely given the importance of the vote.

What is less likely is that the Franken-Coleman fight will have reached a resolution by then.  Without that 60th seat in Democratic hands, the Republicans could mount a filibuster of any nominee and the Dems couldn't break it unless they somehow convinced a Republican to cross over.

All of which means that President Obama might not be able to nominate someone who is quite as liberal as he would like.  Of course, the Republicans might try to block even a moderate Obama pick, so the President could decide to just forge ahead with his preferred nominee.

Some of the names already being bounced around are: Elena Kagan, U.S. Solicitor General; Sonia Sotomayor of the 2nd U.S. Circuit Court of Appeals; Kim McLane Wardlaw of the 9th U.S. Circuit Court of Appeals; Leah Ward Sears, chief justice of the Georgia Supreme Court; and Sandra Lea Lynch, chief judge of the 1st U.S. Circuit Court of Appeals, among others.

Based on the initial lists to come out, it looks like President Obama is leaning towards nominating a female jurist to fill Souter's seat.

Justice Ginsburg might not be lonely on the Court for very much longer.

See Also:
Research US Supreme Court Opinions (FindLaw)
US Supreme Court Center (FindLaw)
Supreme Court Justice David Souter plans to retire (Politico)
Choosing a Supreme Court justice (Nicholas D. Kristof Blog)
Supreme Court Justice Decides DC Sucks, Retires (Gawker)

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