Souter Resigns

Justice Souter is planning to resign. I had heard rumblings of such from my friends in Washington. In spite of the fact that he is relatively young, I was not surprised by the announcement. Rumblings of his discontent with Washington life were not new. Now is the perfect opportunity for someone like Souter to leave. He can ensure that his replacement is someone who thinks like him. With a like-minded President and Democratic control in the Senate, it is unlikely Souter would be displeased with his successor.

As regards judicial philosophy, Souter and President Obama seem to be very similar (although the president, being a politician before he is a constitutional scholar, as kept many of his views hidden). It is likely that the president will nominate someone who thinks very much like Souter.

Honestly, I had expected Ginsburg or Stevens to leave first. That being said, I predicted that the next president, if a Democrat, would have three vacancies to fill in her/his first term. I didn’t think Souter would be first, though (my predictive abilities regarding Supreme Court resignations have never been that good).

So, who is most likely to receive the nomination? There are a number of schools of thought. President Bush tended to nominate people he personally trusted (remember Harriet Miers?). He got shot down by his ideological base. In Alito’s slot, since he couldn’t get Miers, he would have loved to get Alberto Gonzalez, but there was no way the conservatives would let him get that either. I honestly thought Alito’s spot would be taken by a Hispanic, woman, or both. Bush tried one of each, and each got shot down by his base.

Due to Court demographics and political realities for the Obama team, the leading contenders for the new opening are women and Hispanics. This makes Sonia Sotomayor automatically a leading candidate. She is well-respected, moderately liberal, grew up in the Bronx projects, and is a Hispanic woman. However, if President Obama goes with someone he knows and trusts, the leading candidate is probably Elena Kagan, the recently confirmed Solicitor General. A second leading candidate in the “people the president knows and trusts” pool would be Diane Wood, who is a former colleague of Obama’s at the University of Chicago. If the president really goes with someone he trusts rather than standard politics, one might see the unexpected nomination of Valerie Jarrett.

The interesting thing about all of these names I just mentioned is that none are “radical” by judicial standards. True, all of them would vote to uphold Roe v. Wade, but you can’t really imagine an Obama nominee not doing that. (One of these days I will write a blog describing the utter lunacy of Roe from a strictly legal standpoint, but that will have to wait.) But with the possible exception of Wood, none of the women mentioned here hold surprising or particularly controversial judicial views. This would make it very difficult for the Republicans in the Senate to successfully fight against them. They will try, but I don’t foresee any success. But who knows, I’ve been wrong many times when it comes to Supreme Court politics.