"No More Souters"

Though I'm not a lawyer, I am a fierce civil libertarian, so I take a close interest in the comings and goings on the U.S. Supreme Court. On Friday, Associate Justice David Souter announced his retirement at the end of the term, giving President Obama an early opportunity to put a justice of his own on the court. This is the first vacancy on the court since I started this blog, and since I'm a Democrat, this process will be fun.

I'm sorry to see Souter go, which is something I wouldn't have thought possible nineteen years ago, when he replaced liberal legal hero William Brennan. The first President Bush named him to the court, and the Republicans thought of him as a "home run." He was largely unknown, and didn't have much of a paper trail, but still ignited knee-jerk opposition from liberal groups, and was not unanimously confirmed. In retrospect, everyone was dead wrong.

Souter was the ideal Supreme Court justice. He has no ideology, no axes to grind, no agenda. He seemed to approach each case with, shockingly enough, objectivity. It quickly became apparent that he was not a lock-step conservative justice, and in fact settled into what became known as the liberal wing of the court (along with John Paul Stevens, another Republican-appointee that didn't hold to form).

This angered the conservatives, of course, and in the next few Republican appointments to the court, proclaimed "No more Souters," meaning, get someone who will vote how we want them to. Bush the second, with his picks of John Roberts and Samuel Alito, heeded the call.

This weekend in the New York Times, Linda Greenhouse wrote about how indeed there will be no more Souters, but that's because of the changing nature of judicial politics. Of course Souter was an eccentric presence on the Court, like a character out of a nineteenth-century British novel. He was pointedly anti-technical, writing with a fountain pen, and eschewing email and television, and possessing quirks that amused court reporters, such as having the same lunch every day--yogurt and an apple (core and all). But Souter was even more unusual for his lack of politicalization.

He's leaving the court at the relatively young age of 69, most say, because he despises Washington and would like to spend more time in his beloved New Hampshire. But perhaps there is more to it. In his book The Nine (reviewed on this blog), Jeffrey Toobin reports that Souter almost quit the court after the Bush v. Gore decision, despondent over the putsch made by the majority in that case. The Supreme Court is famously collegial even with the justices who reside on different sides of the ideological spectrum, but Souter may have taken things more seriously than was comfortable.

So, who will Obama choose? Almost exactly a year ago I posited that it would be Sonia Sotomayor, an appellate judge who has two desirable traits--she is female and Hispanic. Immediate scuttlebutt suggests that Obama will choose a woman, as a one-in-nine ratio is a stark under-representation. And there has never been a Hispanic on the court, which is another embarrassing condition. Sotomayor would solve both problems, and would seem to be eminently qualified.

I would love to see Sotomayor chosen, if only to make me look like a seer, but I don't think she has it in the bag. The two major reasons would be her being from New York (seven of the current nine justices have substantial ties to the Acela corridor, Washington to Boston) and that she's an appellate judge (all nine of the current justices were plucked from the Appellate Courts). Obama has hinted that he would like a Justice who has some experience beyond the cloistered chambers of courtrooms, which may mean someone who has political experience (Michigan governor Jennifer Granholm is brought up when this is discussed).

From all I've read, Obama will not pick a firebrand, a liberal version of Antonin Scalia. That's too bad, because with 60 votes in the Senate he could pick almost anyone he liked (just as long as they've paid all their taxes and don't frequent hookers). But I believe he will pick someone with a pragmatic view of the Constitution, perhaps along the line of his own view (Obama, of course, was a professor of Constitutional Law).

Other names mentioned are Kim Wardlaw, who is also a Hispanic woman (she is of partial Mexican descent, despite the Anglo last name, and is from California); Leah Sears, chief justice of the Georgia Supreme Court; Diane Wood, who was on the University of Chicago faculty with Obama; and Elena Kagan, newly minted Solicitor General and previously Dean of Harvard Law School.

I'm going to stick with my pick, though, and put my money on Sotomayor. Obama will incur some major wrath if he does not choose a Hispanic (although he is almost certain to get another pick in his term, perhaps two), and Sotomayor is the most qualified female Hispanic legal mind in the country. Whoever Obama picks, the Republicans will squawk and ruffle their feathers and may even amass thirty votes against, but Obama has house money and this seat, which has been liberal since Brennan was appointed over fifty years ago, will stay that way for the foreseeable future.