Supreme Court Justice David Souter is planning to retire at the end of
the current court term.
The vacancy will give President Obama his first chance to name a
member of the high court and begin to shape its future direction.
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. Now, according to reliable sources, he has
decided to take the plunge and has informed the White House of his
decision.
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.
In addition, Souter was apparently satisfied that neither the court's
oldest member, 89-year-old John Paul Stevens, nor its lone woman, Ruth
Bader Ginsburg, who had cancer surgery over the winter, wanted to
retire at the end of this term. Not wanting to cause a second vacancy,
Souter apparently had waited to learn his colleagues' plans before
deciding his own.
Given his first appointment to the high court, most observers expect
Obama will appoint a woman, since the court currently has only one
female justice and Obama was elected with strong support from women.
But an Obama pick would be unlikely to change the ideological makeup
of the court.
Souter was a Republican appointed by President George H.W. Bush in
1990, largely on the recommendation of New Hampshire's former Gov.
John Sununu, who had become the first President Bush's chief of staff.
But Souter surprised Bush and other Republicans by joining the court's
more liberal wing.
He generally votes with Stevens and the two justices who were
appointed by President Bill Clinton — making up the bloc of four more
liberal members of the court, a group that has usually been in the
minority throughout Souter's tenure.
Possible nominees who have been mentioned as being on a theoretical
short list include Elena Kagan, the current solicitor general who
represents the government before the Supreme Court; Sonia Sotomayor, a
Hispanic judge on the U.S. Court of Appeals for the Second Circuit;
and Diane Wood, a federal judge in Chicago who taught at the
University of Chicago at the same time future President Barack Obama
was teaching constitutional law there.
President Obama's choice has an excellent chance of being confirmed by
the U.S. Senate, where Democrats now have an advantage of 59 seats to
the Republicans' 40.
By the time a vote on a successor is taken, the Senate is anticipated
to have a 60th Democrat, as the Minnesota Supreme Court is expected to
approve the recount that elected Democrat Al Franken over incumbent
Republican Norm Coleman in that state.
Souter was a graduate of both Harvard College and Harvard Law School.
He also attended Magdalen College at Oxford University in England. But
his academic pedigree was only one reason he had been regarded as a
thinking man's jurist and a highly thoughtful conservative prior to
his elevation to the nation's highest bench.
Once appointed and confirmed, he soon became a "surprise justice." He
bucked the expectation that he would join the court's conservative
wing — then led by Chief Justice William Rehnquist, who was appointed
to the court by President Nixon and elevated to chief by President
Reagan, and featuring Reagan appointees Antonin Scalia and Anthony
Kennedy.
The appointing president had been assured of Souter's credentials by
the White House chief of staff, John Sununu, who had known Souter as a
conservative member of the New Hampshire Supreme Court when Sununu was
that state's Republican governor.
But when confronted by the ideological debates and partisan landscape
of Washington, Souter surprised both Sununu and Bush by aligning
himself with the court's more moderate wing, which also included
Reagan appointee Sandra Day O'Connor.
Later on, Souter became a full-fledged member of the court's
unabashedly liberal caucus, featuring yet another Republican, John
Paul Stevens (appointed by President Ford in 1975), who remains a
member of the court to this day.
Souter was unconventional in other ways beyond his ideological
independence. He moved to Washington to attend court sessions, but he
returned to his beloved roots in New Hampshire whenever possible,
including for the court's long summer hiatus each year.
Rather than fly home, Souter preferred to drive. He also resisted
other forms of contemporary technology and convenience, holding out
against the cell phone and e-mail and continuing to write his opinions
and dissents in longhand, using a fountain pen.
Once engaged but never married, Souter was once listed among the
capital's 10 "most eligible bachelors" but remained in that category
of "confirmed bachelors."
He was never a creature of the capital city's social scene, living in
a spartan apartment in the city not far from the Supreme Court offices
on Capitol Hill. Although he served nearly two decades on the high
court, he made no secret of his preference for the lifestyle and pace
of his native rural New Hampshire.
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