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Souter Retiring?

Gerard Magliocca points to evidence that Justice David Souter is about to retire from the Supreme Court:

Above the Law is reporting that Justice Souter has not hired clerks for the upcoming Term. While he is typically the last Justice to hire clerks, this is late even for him. This fact, combined with what I’m hearing from other people who probably know what they are talking about, convinces me that unless something extraordinary occurs in the next two months, he is retiring in June.

While speculation about vacancies based on the health of Justices is a bit crass, reading the tea leaves on ordinary retirements in this way strikes me as quite reasonable.  So, let the speculation commence.  Maybe someone on the faculty at Chicago, where Barack Obama once taught?

It’s worth noting that Souter was appointed nineteen years ago by President George H.W. Bush, a Republican, and went on to greatly disappoint conservatives hoping he’d be a stealthier Robert Bork.  Indeed, he’s arguably more liberal than either of Bill Clinton’s appointees, Ruth Bader Ginsburg and Stephen Breyer.  One just never knows how appointees will vote once they’re settled in.

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About James Joyner
James Joyner is the publisher of Outside the Beltway, an associate professor of security studies at the Marine Corps Command and Staff College, and a nonresident senior fellow at the Atlantic Council. He's a former Army officer and Desert Storm vet. He earned a PhD in political science from The University of Alabama. Views expressed here are his own. Follow James on Twitter.

Comments

  1. Tlaloc says:

    Will the coleman-franken debacle be over in time for the dems to have a filibuster proof majority for Obama’s first (but likely not last) SCOTUS pick?

    If not I expect to see heavy fireworks from the pro-lifers to keep the GOP senators hypocritical (after all the “up or down vote” nonsense from the bush years)

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  2. […] H/T: James Joyner […]

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  3. Dave Schuler says:

    Having an appointment for life that’s for practical purposes unanswerable to anybody can be quite liberating.

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  4. James Joyner says:

    Will the coleman-franken debacle be over in time for the dems to have a filibuster proof majority for Obama’s first (but likely not last) SCOTUS pick?

    It would only be 59-41 with Franken, counting both Lieberman and Sanders as Dems.

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  5. just me says:

    If not I expect to see heavy fireworks from the pro-lifers to keep the GOP senators hypocritical (after all the “up or down vote” nonsense from the bush years)

    I am not so sure there would be heavy fireworks. There will be some to be sure-just like there were some when Bush made his appointments, but Souter is the liberal wing of the court and already a reliable pro choice vote. I think the fireworks won’t come until/unless Obama gets to appoint a replacement from one of the conservatives on the court.

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  6. Triumph says:

    Indeed, he’s arguably more liberal than either of Bill Clinton’s appointees, Ruth Bader Ginsburg and Stephen Breyer. One just never knows how appointees will vote once they’re settled in.

    I always assumed that Soros was paying him off. There is no way he should be as liberal as he’s been!

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  7. Tlaloc says:

    It would only be 59-41 with Franken, counting both Lieberman and Sanders as Dems.

    Hrrrm, you’re right. I could have sworn we were at 59-40 but the 2/3rds rule required 60 to overrule due to rounding.

    Alright, nevermind then. I guess serious fireworks are unavoidable.

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  8. Tlaloc says:

    geh. 3/5ths not 2/3rds. Not my day.

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  9. Tlaloc says:

    Souter is the liberal wing of the court and already a reliable pro choice vote. I think the fireworks won’t come until/unless Obama gets to appoint a replacement from one of the conservatives on the court.

    But as the prolifers reckon things they are only one vote away from taking down Roe/Casey. Replacing a liberal vote with a moderate or conservative means they win (in their estimation) whereas replacing a conservative with another conservative just means the unacceptable status quo.

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  10. But as the prolifers reckon things they are only one vote away from taking down Roe/Casey. Replacing a liberal vote with a moderate or conservative means they win (in their estimation) whereas replacing a conservative with another conservative just means the unacceptable status quo.

    Yes, but they’re not going to get a conservative appointment from Obama. And “moderate” usually ends up being someone unwilling to overturn the Roe precedent.

    This could get interesting, though; potentially Obama could have as many as three SCOTUS appointments in his first term alone (Stevens, Ginsburg, and Souter). None of these will change the balance of the Court, but if Anthony Kennedy resigns, watch out.

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  11. just me says:

    But as the prolifers reckon things they are only one vote away from taking down Roe/Casey.

    Except no pro lifer is going to expect Obama to appoint a pro life justice. We all know that Obama is going to choose somebody who has strong pro choice credentials-not necessarily Mr. or Mrs. Liberal, but he isn’t going to choose somebody even remotely in the pro life ballpark.

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  12. Tlaloc says:

    Except no pro lifer is going to expect Obama to appoint a pro life justice.

    A) I wouldn’t say the Pro-life crowd is all that rooted in reality.

    B) what happens if they can keep the seat empty by refusing to pass anyone? What happens if the SCOTUS deadlocks on an issue?

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  13. just me says:

    B) what happens if they can keep the seat empty by refusing to pass anyone? What happens if the SCOTUS deadlocks on an issue?

    Contrary to what you think-there aren’t that many members of the senate that are going to go to the mat over having a pro life justice-there aren’t enough pro lifers in the senate as it is.

    I just don’t see the senate wasting time fillibustering a justice that changes nothing. If they go to the mat, they will likely go to the mat over a nomination that would change the dynamics-ie one of the conservatives or Kennedy leaves the court.

    Do you really think Specter and the two ladies from Maine are going to participate in a fillibuster over a pro life justice? I don’t think the GOP could get a coalition that would.

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  14. Tlaloc says:

    Contrary to what you think-there aren’t that many members of the senate that are going to go to the mat over having a pro life justice-there aren’t enough pro lifers in the senate as it is.

    I think you are misreading my argument. I’m not saying that the prolifers can keep all 41 republican senators together in a filibuster over a SCOTUS nominee. What I’m saying is they will try like hell to do so.

    I just don’t see the senate wasting time fillibustering a justice that changes nothing. If they go to the mat, they will likely go to the mat over a nomination that would change the dynamics-ie one of the conservatives or Kennedy leaves the court.

    Do you know what happens if the court is deadlocked 3-3? I don’t, so I’m honestly asking. But until we answer that it is premature to say this pick changes nothing. besides which I think you drastically underestimate how badly the prolifers want this. And again the only way they can win is to replace an aye with a nay. Holding the line on a conservative gets them nothing but more of the same.

    Their strategy will either be to keep the seat empty (if that is advantageous to them) or to try to get in a candidate they hope will pull a reverse Souter (appear liberal but turn out conservative) particularly if such a candidate is highly appealing to the left and Obama for other reasons.

    I’m not saying they’ll succeed. Not at all. But if you don’t think they’ll be a calling in every favor and using every bit of blackmail I think that’s very naive.

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  15. just me says:

    If the court is deadlocked in a tie, I am pretty certain the ruling of the lower court stands. There are times when only 8 justices hear a case rather than the full 9 due to recusal. There have been 4-4 decisions in the past.

    And i still don’t think the senate is going to go out of its way to filibuster a justice that is replacing a reliable pro choice justice-at least not over that issue.

    but keep in mind Obama felt Roberts was unqualified for his appointment-which is about as partisan a vote as you could get. I won’t feel much empathy for him, if his picks are given a hard time. I will feel some empathy for the picks, given the climate of court nominations in recent years, I am amazed anyone would accept a nomination.

    But Obama IMO is one of the biggest hypocrites out there when it comes to SCOTUS picks.

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  16. An Interested Party says:

    but keep in mind Obama felt Roberts was unqualified for his appointment-which is about as partisan a vote as you could get.

    So anyone who voted against Roberts was nothing but a partisan hack? There was no legitimate reason to vote against his nomination? Would you prefer the Senate to be just a rubber stamp for the president…

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  17. just me says:

    Not necessarily a rubber stamp, but I would like the objections to actually be based on qualifications or reasons to doubt ethics.

    I do actually think the president’s should mostly have their nominations approved-and I think the senate should pretty much only filibuster or fail to confirm a nominee based on a lack of qualification or reason to believe they lack ethical standards. I am also not a fan of blue slipping to stall nominations at the committee level.

    I am pretty extremely pro life, but i fully expect Obama to choose extremely pro choice justices and outside of a true lack of qualifications I think his nominees should be confirmed.

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  18. An Interested Party says:

    I guess we’ll see when the president actually gets his first chance to put someone on the Supreme Court, won’t we? But I don’t expect either party to stop playing the partisan games that they’ve been playing for quite some time when it comes to judicial nominees…do you?

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