Souter Retiring in June

A couple weeks back, I wrote a post called “Souter Retiring?”  The speculation was apparently well founded, as several outlets are now reporting that Justice David Souter will in fact step down at the end of the current session in June.

NPR’s Nina Totenberg makes the interesting observation that, “At 69, Souter is nowhere near the oldest member of the court. In fact, he is in the younger half of the court’s age range, with five justices older and just three younger. So far as anyone knows, he is in good health. But he has made clear to friends for some time that he wanted to leave Washington, a city he has never liked, and return to his native New Hampshire.”

Additionally, she’s undoubtedly correct that “Factors in his decision no doubt include the election of President Obama, who would be more likely to appoint a successor attuned to the principles Souter has followed as a moderate-to-liberal member of the court’s more liberal bloc over the past two decades.”  Further, he wanted to make sure no one else was going to retire and create the chaos of two vacancies.

Of course, as Peter Baker and Jeff Zeleny note for NYT, this will be President Obama’s first chance to appoint a Justice (something, incidentally, that Jimmy Carter never got).   I think they’re basically right that, with a very strong Democratic majority in the Senate and the fact that Souter is arguably the most liberal member of the Court should combine to make this relatively smooth.

William Jacobson, though, points to an odd procedural twist in the Senate rules by which “ironically, Specter’s defection may give Republicans the ability to filibuster judicial nominees at the Judiciary Committee level, so the nominees never get out of committee.”  Essentially, at least one member of the minority party must agree to end debate in the committee and, now that Specter is a Democrat, that leaves nothing but conservative Republicans: “Orrin Hatch, Chuck Grassley, Jon Kyl, Jeff Sessions, Lindsey Graham, John Cornyn, and Tom Coburn.”   Presuming Obama doesn’t appoint a Lani Guinier type, which would be out of character, my guess is that this proves no more contentious than, say, the Alito confirmation.

Souter is, by all accounts, a decent man and a good public servant.  He was, alas, one of the great disappointments of the George H.W. Bush presidency.  To be sure, Bush was a mainline Republican rather than a Movement Conservative, but Souter wound up substantially to the left of where he was expected to be.  They often do.

It’s also fascinating that a 69-year-old in good health is below the median agewise on the Court and that neither 89-year-old John Paul Stevens  nor 76-year-old Ruth Bader Ginsburg, who is battling pancreatic cancer, even seriously considered retirement.  Then again, Supreme Court Associate Justice is probably the best job in American government, combining interesting work, extraordinary power, relative anonymity, and immense job security.

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James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. An Interested Party says:

    …but Souter wound up substantially to the left of where he was expected to be. They often do.

    Just makes you want to tear your hair out, eh? Anyone care to offer an explanation as to why this is so often the case…

  2. James Joyner says:

    Just makes you want to tear your hair out, eh? Anyone care to offer an explanation as to why this is so often the case…

    I think it’s a combination of freedom from political pressure, immersion in the Beltway culture, and an eye toward history.

  3. sam says:

    Supreme Court Associate Justice is probably the best job in American government, combining interesting work, extraordinary power, relative anonymity, and immense job security [my emphasis].

    I can’t recall which associate justice this was, but the chief justice called the associate’s office to tell him to hurry up, he was late for the meeting. The associate yelled to his clerk to tell the chief that he’d be there when he got there–he didn’t work for the chief justice.

  4. James Joyner says:

    Sam: Yep. Being Chief has its perks but, for a few measly extra bucks and more historical recognition, it comes with a lot of admin duties and a task worse than herding cats.

  5. fester says:

    James — are you sure that William Jacobson is right? As I understand it, Specter is still the ranking member of the Senate Judiciary committee with all of the staff and administrative powers that implies because the Senate has not been reorganized. As I understand it, for purposes of organization on committee seats, Specter still counts as a Republican until the Senate passes another organizing resolution.

  6. floyd says:

    We could do worse, and probably will!

  7. PD Shaw says:

    …but Souter wound up substantially to the left of where he was expected to be. They often do.

    Lawrence Tribe was on TV this morning claiming that he knew, and anybody familiar with Souter’s background knew, that Souter would be a moderate to liberal justice. And that Team Bush simply hadn’t done their homework and outsourced the matter to Sununu.

    Aside from a probable degree of self-promotion on Tribe’s part, I suspect that is true.

  8. James Joyner says:

    James — are you sure that William Jacobson is right? As I understand it, Specter is still the ranking member of the Senate Judiciary committee with all of the staff and administrative powers that implies because the Senate has not been reorganized. As I understand it, for purposes of organization on committee seats, Specter still counts as a Republican until the Senate passes another organizing resolution.

    I’m not absolutely sure, since Senate rules can be arcane. But I can’t imagine the Republicans wouldn’t insist on ousting him as Ranking Member.

  9. An Interested Party says:

    re: James Joyner at May 1, 2009 06:32

    So if most judges are left to their own devices and allowed do whatever they want and if they’re worried about how they will be viewed, they will often shift left…interesting…

    We could do worse, and probably will!

    Indeed! I’m sure Robert Bork is still available…

  10. Bithead says:

    Heh. You watch. He’ll nominate Pelosi to the bench. Think about it; A female liberal, and someone very few congressional Dems would vote against, with the added bonus he gets the woman out of his hair, while tossing a bone to the whackjob left in Sanfran.

  11. legion says:

    Sooo… about those “up or down votes” the Republicans were so big on a few years ago…

  12. Jeffrey W. Baker says:

    The Republicans can “insist” on ejecting Specter from his seat, but that will require a reorganization of the Senate, which will cause Al Franken to be seated. Therefore it’s a bit of a catch 22 for the GOP.

  13. fester says:

    Echoing Jeffrey — the GOP can hoot and holler, but Specter is still considered the ranking member of the minority. Here is the Committee membership list for the minority in the Senate for the 111th Congress:

    Resolved, That the following be the minority membership on the following committees for the remainder of the 111th Congress, or until their successors are appointed:

    COMMITTEE ON THE JUDICIARY: Mr. Specter, Mr. Hatch, Mr. Grassley, Mr. Kyl, Mr. Sessions, Mr. Graham, Mr. Cornyn, and Mr. Coburn

    Specter is named as a member of the minority party and an organizing resolution has to pass through a majority vote for Specter to be removed from the Committee and replaced as he is still a Senator and not dead, expelled or resigned.

  14. Bithead says:

    The Republicans can “insist” on ejecting Specter from his seat, but that will require a reorganization of the Senate, which will cause Al Franken to be seated. Therefore it’s a bit of a catch 22 for the GOP.

    I’d not worry about all that much. There’s already enough very vocal democrat party embers annoyed with Specter’s bypassing them in Democrat Seinority. My guess is that won’t settle down for a while at least.

  15. floyd says:

    “”Indeed! I’m sure Robert Bork is still available…””
    “””””””””””””””””””””””””””””””””””””””””””””””
    Right… wouldn’t want anyone who understood or respected the constitution! [lol]

    So, what are the odds of getting another Scalia?

    More likely to nominate a Soros, I’d say.

  16. Grewgills says:

    So, what are the odds of getting another Scalia?

    More likely to nominate a Soros, I’d say.

    I’d say the two are equally likely.

  17. An Interested Party says:

    Right… wouldn’t want anyone who understood or respected the constitution!

    Yeah, like…say…those who voted in Bush’s favor in Bush V. Gore…uh huh…

  18. Tlaloc says:

    Presuming Obama doesn’t appoint a Lani Guinier type, which would be out of character, my guess is that this proves no more contentious than, say, the Alito confirmation.

    You may well be right in regards to the actual senate republicans but I’ll be amazed if the prolifers don’t pull out all the stops for this and every other liberal retirement. All they need is one more anti-roe vote by their reckoning… and they’ve wanted it so bad for so long…

    As far as Bork, he’s an originalist which means he’s either a hypocrite or an idiot, depending on whether he makes such claims honestly.

    Although its very possible I should be embracing the power of and.

  19. G.A.Phillips says:

    Yeah, like…say…those who voted in Bush’s favor in Bush V. Gore…uh huh…

    What in the great green hell does this mean?????