Ken Heinen/AP
Supreme Court Justice David H. Souter in 1990.

Souter: The Man, the Legacy, His Replacement

May 04, 2009 05:30 PM
by Anne Szustek
Retiring Supreme Court Justice David H. Souter was appointed by conservatives, but actually voted “liberal” for much of his time on the High Court. What’s next for the justice and the ensuing vacancy?

Souter Retires: The Next Few Months

In 1990, President George H.W. Bush appointed an unassuming, little-known judge from New Hampshire to serve on the Supreme Court. As The Los Angeles Times put it, Justice David H. Souter is a conservative in the traditional New England thrifty style: dressing and eating simply, skipping the Beltway social scene, and using pad and fountain pen instead of a computer. But while he has clearly demonstrated a healthy respect for tradition, traditionalist does not mean conservative; his votes on the bench disappointed conservatives.

Stanford University law professor Pamela Karlan told The Los Angeles Times, “he was not a true liberal … But he believed in privacy and civil rights and precedents. That made him a liberal on the court today.”

Souter turned out to be an effective moderate in his legal rulings. Now that Souter has given notice of his pending retirement, those Washington insiders who fall to the right of political center hope that President Barack Obama will follow a similar path and appoint a moderate with broad appeal.
Voice of America quoted Arlen Specter, the long-term Senator who just switched his party affiliation from Republican to Democrat, as saying, “Women are underrepresented on the court. We do not have an Hispanic. African-Americans are underrepresented.”

“I am hoping he will pick someone with great dimension,” Sen. Orrin Hatch, R-Utah, said on ABC News program “This Week.” “We all know he is going to pick a more liberal justice.”

Sen. Richard Shelby, R-Ga., said on CNN on Sunday, “I have no illusions about President Obama appointing a conservative like [Justice Samuel] Alito or [Chief Justice John] Roberts. But if he will appoint a pragmatist, someone who is not an ideologue, that someone is not just going to light all the lightbulbs in America on the left, I think that would be good for the country.”

Opinion & Analysis: Justice Souter: His future and successors

Souter, age 69, plans on retiring to his modest New Hampshire home, where, The New York Times speculates, he will spend his time climbing the nearby White Mountains and reading.

Senate Judiciary Committee Chair Sen. Patrick Leahy, D-Vt., has said that he will try his utmost to have a new justice confirmed by Oct. 5, when the Supreme Court is scheduled to reconvene. The government is assumed to have a preference for candidates who are not sitting judges. Along those lines, the rumored potential nominees include current Secretary of Homeland Security Janet Napolitano, who has never been a judge, although she has served as attorney general and governor of Arizona. She would help to assuage the high court’s gender imbalance. Lawyer and legal analyst Andrew Cohen mentioned current Mich. Gov. Jennifer Granholm as another possible nominee, as she has a similar political and legal résumé as Napolitano’s.

Cohen also sees a stiff confirmation battle, regardless of the nominee, and that the White House will likely make its choice based on the belief that one or more additional spots in the Supreme Court will  open during the Obama administration. One near certainty: even the most liberal justice would do little to upset the court’s usual 5-4 moderate vote.

“You could put the head of NARAL or the ACLU on the court right now and it wouldn't move the court to the left because they don't have five votes,” Thomas Goldstein, co-head of Akin Gump's litigation and Supreme Court practice, told Forbes magazine." 

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