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Tilting at Windmills

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May 1, 2009

SOUTER, OBAMA, AND THE COURT.... When Supreme Court Justice David Souter didn't hire clerks for the next term, that should have been a pretty big hint.

Justice David H. Souter plans to retire at the end of the term in June, giving President Obama his first appointment to the Supreme Court, four people informed about the decision said Thursday night.

Justice Souter, who was appointed in 1990 by a Republican president, the first George Bush, but became one of the most reliable members of the court's liberal wing, has grown increasingly sour on Washington and intends to return to his home state, New Hampshire, according to the people briefed on his plans. One official said the decision might be announced as early as Friday.

The departure will open the first seat for a Democratic president to fill in 15 years and could prove a test of Mr. Obama's plans for reshaping the nation's judiciary. Confirmation battles for the Supreme Court in recent years have proved to be intensely partisan and divisive moments in Washington, but Mr. Obama has more leeway than his predecessors because his party holds such a strong majority in the Senate.

A month ago, Supreme Court Justice Ruth Bader Ginsburg said President Obama would "surely" be able to choose a new justice "soon." Looks like she was right. It will be the first vacancy under a Democratic president in 15 years.

A few angles to consider this morning.

Why is Souter stepping down?

Souter, 69, clearly never enjoyed life in D.C., preferring quiet seclusion in New Hampshire. The Washington Post's report noted, "A friend who ran into him last summer in Concord said he was surprised by just how strongly Souter spoke about wanting to leave Washington. 'He said, 'If Obama wins, I'll be the first one to retire.'"

Will this change the balance of the high court?

That's highly unlikely. Souter is one of the court's more progressive voices, so Obama is poised to replace one liberal with another. The key, however, is age and longevity -- Obama may choose a youthful justice, who can be a progressive voice for decades to come.

Who's likely to get the nomination?

It's obviously very early -- NPR broke the story just 10 hours ago -- but speculation is already focused on a handful of names. Some of the leading contenders include federal appeals court judges Sonia Sotomayor and Diana Pamela Wood, Solicitor General Elena Kagan, and Georgia Chief Justice Leah Ward Sears. The early buzz is focused heavily on Sotomayor, who would be the Supreme Court's first Hispanic justice.

Salon republished a list of possible nominees this morning, as did ScotusBlog's Tom Goldstein. Sam Stein has a few replacement possibilities as well. (You'll notice, of course, that there's quite a bit of overlap among the lists.)

What should we expect from the confirmation hearings?

With the Democratic caucus at 59, chances are pretty good that Obama's nominee will get confirmed. How Republicans will act, however, is less clear.

As far back as November, literally just a few days after the election, Arizona Sen. Jon Kyl (R) the second-ranking Republican in the Senate, threatened to filibuster any of Obama's Supreme Court nominees he considered insufficiently conservative. That was 11 weeks before Obama was even inaugurated.

With this in mind, and given the GOP freak-out over uncontroversial cabinet nominees like Kathleen Sebelius, a severe Republican temper tantrum is likely, no matter who the president nominates. If for no other reason, the minority party will see some value in working the base into a frenzy of hot-button cultural issues.

Just when it seemed the political world couldn't get any more interesting, one more huge task is added to the president's to-do list.

Steve Benen 8:00 AM Permalink | Trackbacks | Comments (35)

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Comments

Why does Arizona Sen. Jon Kyl hate the troops so much?

Posted by: Stevio on May 1, 2009 at 7:59 AM | PERMALINK

This will really bring out the mfg. outrage and pseudo talking points, to say nothing of Rethuglican manuverings. With the stink about Sec of HHS, I can't wait to hear of the peril imposed by a new justice. Lock up the children and put chastitiy belts on your wives!!! The NEGRO is gonna put a gang banger in the court chambers, compleat with boom box and greasy fried chicken fingerprints.

Posted by: TulsaTime on May 1, 2009 at 8:02 AM | PERMALINK

Seriously ...time to take off the gloves. Let them howl and caterwall all they want. The party of NO! would not be satisfied with anyone we present, so just give the the finger and remind them BTW, we won the election in case you forgot. They are only looking at this as a fund raising opportunity by agitating that 21%.

Posted by: John R on May 1, 2009 at 8:12 AM | PERMALINK

alas, Souter may have done this too soon for my choice, Kagen. how does the Right credibly say the Dean of freakin' Harvard Law isn't qualified for the Sup Ct? (i know, i know - the same way they say Koh, Dean of Yale Law, isn't confirmable as counsel to State).

i just hope Obama doesn't have one of his post-partisan, try-to-please-everyone moments on this. the Bush certainly never did. this is a to-the-mattresses moment for the Dems.

Posted by: zeitgeist on May 1, 2009 at 8:20 AM | PERMALINK

I think it will be necessary for Obama to take the gloves off.

When he announces his nomination, Obama should call out members of the "Gang of 14" who got together and decided that "Nominees should be filibustered only under extraordinary circumstances". Obama should mention the most prominent media whores by name -- Lindsey Graham, John McCain and Joe Lieberman -- and remind them of the agreement they signed back in 2005, and tell them that they will have to explain it to the American people if they decide that the rules have now changed.

Obama should also call the Democratic members of the Gang, and tell them that he has no problem calling them out, too, if it becomes necessary.


Posted by: SteveT on May 1, 2009 at 8:28 AM | PERMALINK

Can we add William Ayers and Jeremiah Wright to those lists? Might as well have the right go totally apoplectic.

Posted by: Kevin the Baker on May 1, 2009 at 8:28 AM | PERMALINK

I know the "jewish" label tends to trump all other categorizations, but IMO, Benjamin Cardoza was the first Hispanic justice. He even spoke fluent spanish.

Posted by: dave on May 1, 2009 at 8:30 AM | PERMALINK

Over at sfgate, one of their columnists "Big Vinny" has a hoot of a column pushing DiFi as Souters replacement. Not withstanding the pragmatic side of AHnold selecting her replacement, is anyone old enough to remember, if DiFi ever supported any Democratic positions? My wife, a strong Progressive, taught at a local SF high school, when DiFi made her first political move - She still considers DiFi to be a RepuG.

Posted by: berttheclock on May 1, 2009 at 8:32 AM | PERMALINK

total war. this will be a bloodbath.

Posted by: Saint Zak on May 1, 2009 at 8:32 AM | PERMALINK

It is my high desire to see Obama select a nominee who meets the following criteria:
- Not corporately owned
- Not a believer in an 'imperial presidency'
- An actual believer in individual rights
- As young as possible

While nominating a female and/or a hispanic and/or a minority of any kind has value, I want an actual progressive added to the court who will have a probability of outlasting the assholes like Roberts who were appointed by George W. Bush.

Roberts is the youngest of the current supremes and was born in 1955.

Of the names put forth by blogs so far:

Sonia Sotomayor was born in 1954.
Elana Kagan was born in 1960.
Harold Koh was born in 1954.
Teresa Roseborough was born in 1958.
Leah Ward Sears was born in 1955.
Kathleen Sullivan was born in 1955.

Of these, my immediate choices would be Kagan or Roseborough - based upon age.

Every other name I have heard so far is much older.

It doesn't matter who Obama selects, the rethugs & their corporate media echo chamber will assuredly determine that it is a 'controversial' nomination. Therefore, I will take a position that the louder they scream the better. Get us a 'liberal' justice to go against Roberts, Scalia, Thomas, and Alito.

Posted by: SadOldVet on May 1, 2009 at 8:37 AM | PERMALINK

alas, Souter may have done this too soon for my choice, Kagen.

Yes, but just a reminder that JPS is about 110 years old and RBG isn't feeling excessively pert. There will be others.

But in the "making Bush family heads explode" category, this is a nice moment: Bush I's choice, who happily turned out not to be insane, telling his friends that he's waiting out Bush II's term and then bugging out for the dugout.

Posted by: shortstop on May 1, 2009 at 8:52 AM | PERMALINK

Benjamin Cardozo, of whom many a law student learned about proximate cause, was from a family of Portugese Jews.

Posted by: berttheclock on May 1, 2009 at 8:55 AM | PERMALINK

I don't see this as a 'task' for Obama. It's an opportunity to nail the Republican party's balls to the wall-- and if Obama's half the politician I think he is, it's an opportunity he's been waiting for.

Posted by: MattF on May 1, 2009 at 8:59 AM | PERMALINK

As their "balls" appear to be shrinking daily, wouldn't thumb tacks work?

Posted by: berttheclock on May 1, 2009 at 9:00 AM | PERMALINK

Give us a liberal or give us death.


Posted by: Tom Nicholson on May 1, 2009 at 9:01 AM | PERMALINK

But McCain and Graham and the "gang of 14" won't allow a filibuster...right?

Posted by: Robert Earle on May 1, 2009 at 9:02 AM | PERMALINK

I assume Sotomayor is Catholic, and that would raise the number of Catholics on the court from five to six. So would just about any Hispanic, for that matter. Considering that abortion and reproductive issues are one of the main Supreme Court flashpoints, this could become an issue.

Posted by: Virginia on May 1, 2009 at 9:04 AM | PERMALINK

The focus on Souter accents how far the Republican Party has drifted into their mindless ocean. Appointed by Poppy Bush, I remember liberals thought this guy was a horror. Now, less than 20 years later, Souter is considered a liberal. And I suppose he is liberal when compared to knuckle dragging neanderthals like John Roberts and Samuel Alito.

Posted by: Capt Kirk on May 1, 2009 at 9:21 AM | PERMALINK

If for no other reason, the minority party will see some value in working the base into a frenzy of hot-button cultural issues.

I really don't understand this. Unless the goal is to drive the base into such an insane frenzy that we really do end up with armed insurrection or secession in the next 3+ years that potentially ends democracy in this country, I don't think it helps Republicans to constantly whip their base over every single issue that comes along. As polling numbers for the last 4 months show, it just alienates the moderates they need to win elections outside of the South.

Posted by: Shalimar on May 1, 2009 at 9:22 AM | PERMALINK

In a brilliant, diabolical move, Obama offers the seat to Norm Coleman. Being the egotist that he is, Normboy takes the bait and concedes the Senate seat to 'Big' Al. Obama rushes the nomination to a vote with virtually no debate and the dems relegate Norm to the ashbin before he knows what hit him.

Posted by: Michael7843853 on May 1, 2009 at 9:30 AM | PERMALINK

In The Spirit of bipartisanship, I demand Prznt. Obama nominate Orrin Hatch to the SCOTUS.

It's only reasonable.

Also, I wanna see the look on Hatch's face.

Posted by: johnsturgeon on May 1, 2009 at 9:39 AM | PERMALINK

The GOP doesn't have the votes to mount a successfull filibuster (which has never been attempted on a SC nominee anyway), but I hope Kyl and his ilk go nuts anway. If the nominee is someone like Sonia Sotomayor, who's not only a woman (and a Bush I appointee), but would be the first Hispanic on the Court, opposing her would be a disaster for the GOP. If they wish to inflict further political damage on themeselves, who are we to stop them?

Posted by: gf120581 on May 1, 2009 at 9:42 AM | PERMALINK

huh

Any odds on how long after the nomination before some Republican senator says the choice makes him want to puke?

Posted by: wtf on May 1, 2009 at 9:48 AM | PERMALINK

http://www.isitfriday.org/

Posted by: johnsturgeon on May 1, 2009 at 9:53 AM | PERMALINK

If the nominee is someone like Sonia Sotomayor, who's not only a woman (and a Bush I appointee), but would be the first Hispanic on the Court, opposing her would be a disaster for the GOP.


I like that idea. What a wonderful time to give Republicans that minority outreach opportunity they've been looking for. Pin the bastards between their base and minorities.....what great sport!

Posted by: hopeful on May 1, 2009 at 9:53 AM | PERMALINK

This will make interesting political theater.

Be prepared to read "The socialist Obama replacing GOP judges with an ultraliberal, Soros-funded woman. And why does it have to be a woman, how about the best qualified candidate? Scalia and Roberts weren't controversial, but moderates" ad naseum.

Glad to see the GOP is still sticking to the ol' gameplan.

Posted by: ChrisS on May 1, 2009 at 10:09 AM | PERMALINK

I really, really, really hope Dems pull the "Nuclear Option" if (or, more likely, when) the GOP decides to filibuster and not give the appointee the "up or down vote."

You remember the "up and down vote" demand, don't ya GOP? You're going to give Obama's appointee the same respect you demanded for Bush's, correct?

Or are you assholes going to act as if history started Jan. 20, 2009?

Posted by: Mark D on May 1, 2009 at 10:22 AM | PERMALINK

Five words: Nuke 'em 'til they glow.

I really want to see these Czarist GOPer scum go critical mass to the point that they start dropping from massive strokes in front of the FOX cameras.

Oh, and by the way---Happy May Day, boys and girls!!!

*walks out of the room, humming "the Internationale...."

Posted by: S. Waybright on May 1, 2009 at 10:53 AM | PERMALINK

This won't merely be the first Democratic appointment in 15 years, it will be only the third one in 42 years.

Posted by: Guscat on May 1, 2009 at 11:30 AM | PERMALINK

Time for an update rundown on the Gang of Fourteen.

Posted by: Sarah Barracuda on May 1, 2009 at 2:30 PM | PERMALINK

No Catholics. We already have about 4, right?
Nobody over 50.
No inexperienced people. We need someone with experience as a judge.
Probably nobody a Bush appointed, though Reggie Walton was appealing in the Libby trial.
A female would be good, but ...
Can we really afford someone from Harvard or Yale considering what those schools have wrought on America in recent years?
And please, nobody from Colombia either.

Is there a regional bias on the court? Maybe evening that out (if it exists) somehow could be a plus.

Oh, it obviously should be somebody who doesn't hate living in D.C. That's a valuable lesson from Souter's time there.

Posted by: MarkH on May 1, 2009 at 3:53 PM | PERMALINK
I assume Sotomayor is Catholic, and that would raise the number of Catholics on the court from five to six. So would just about any Hispanic, for that matter. Considering that abortion and reproductive issues are one of the main Supreme Court flashpoints, this could become an issue.

Catholics have almost precisely the same range of views on abortion and reproductive issues as the population at large; clearly this is not true of the Catholic heirarchy, but unless someone suggests appointing a member of the episcopate to the bench, that's hardly relevant. (Sure, the current Catholic members of the court are largely hard-right types, but they were appointed by Republicans for their political leanings, not because they happen to be Catholic.)

Posted by: cmdicely on May 1, 2009 at 6:38 PM | PERMALINK

To all the short-sighted libs who're clamoring for the youngest-possible nominee... Right *idea*, wrong methodology. You want someone who will *serve* the longest, i.e. with the greatest remaining life expectancy -- and that involves more than simple age. I tried assessing their respective health prospects, and ruled out all who even border on overweight (among other clues). Best choice: Kim McLane Wardlaw, who's ectomorphitude reflects her publicly known aerobic-exercise habits. Combined with her political/judicial views, it makes her 98 out of 100. To make her 100, she'd have to be unmarried, to eliminate the risk of retiring to care for a sickly spouse.

Posted by: ravinglib on May 1, 2009 at 7:28 PM | PERMALINK

"No inexperienced people. We need someone with experience as a judge."

That would eliminate John Marshall, Louis Brandeis, Felix Frankfurter, and Earl Warren, among others.

Posted by: David T on May 2, 2009 at 2:43 AM | PERMALINK

Mark D: The nuclear option won't be necessary. Snowe and Collins will be enough--even if there are one or two Democratic defections.

Posted by: David T on May 2, 2009 at 2:45 AM | PERMALINK




 

 

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