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NPR: Souter to step down from Supreme Court

By 68 Comments

According to NPR, Supreme Court Justice David Souter plans to retire from the bench at the end of the court’s current term.

NPR has learned that 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.

So, resident court watchers, who should Obama nominate?  

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    • I am honored to be included in some people’s short list of potential Supreme Court Justice nominees.  I have tremendous respect for the Court and its role in American history.  However, I want to make it clear that I am committed to Massachusetts, and to continuing our work to guide the state through the national economic crisis and implementing our reform aganda.  I will serve out my first term and run for re-election in 2010.

      • So thanks for taking the time to say, here, that for the first time in 16 years there is a governor of Massachusetts who puts being governor of Massachusetts first, and understands the high honor and challenge of the position.

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        p>Myself, I am hoping the nominee will be both an experienced judge, and young [well as young a possible] and healthy, because my own perception is that USSCT justices deepen over time, so having the time and energy to “deepen” is a good thing.

        <

        p>I also have noted in my own life – funny thing – I get tired more easily at 60 then I did at 50 and suspect this quality is not unique to me.

      • Your Excellency would not be the first to choose a Governorship over a Court seat.  John Jay, the first Chief Justice, actually RESIGNED that post in order to accept election as Governor of New York, an office he considered much more prestigious.  I recently read that Jay was later offered reappointment to the Court, but declined.  It wasn’t until John Marshall came along that the Supreme Court really asserted itself as the co-equal third branch of our government.  I’m sure I will be supporting your bid for re-election.

      • your threat to veto tax increases until reform is taken seriously sends a strong message.  I do support the sales tax increase though, not the gas tax increase.  I appreciate the fight for reform before revenue, but if we have to have a tax increase, sales tax is a more regionally equitable way to raise revenue.  The gas tax will have a greater financial impact on those of us who live in the rural west, where commutes to work can be long and expensive. I also support reversing the sales tax exemption on candy, soda, and alcohol. These exemption should not even be in place.  I oppose sales tax on gas. That would be a huge mistake.

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        p>Reform is equally important, if not more important than raising taxes.  Please continue to push for fiscally responsible governing.  That is what the people of this state want more than anything else.  We are tired of having our tax dollars wasted on spending that benefits the elected officials instead of the citizens of our state.

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        p>I also support casino destination resorts in Massachusetts.
        I support this because we need the “resort” aspect of it in our Western/Central MA region.  I oppose “slot parlors” where there is no other purpose to visit except to gamble.

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        p>Thanks Governor Patrick!

  3. and Lt Gov Murray would be a damn good, politically savvy Governor.

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    p>Let’s hope the short list is limited to President Obama’s bff Deval Patrick.

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    p>Win-win for Massachusetts.

  5. is short-listed for the Supreme Court (he was mentioned in the NPR piece) just goes to show how ignorant our national press corps can be.

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    p>Has Patrick ever published anything in a law journal? (I haven’t heard or seen that he has). Does he have any bench experience? No. What has he done? Some decent work in civil rights law.

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    p>Is Obama going to appoint someone with a decent, but basically undistinguished background, in law? No.

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    p>File this one with the national news stories that refer to Mitt Romney as a deep thinker.

    • former Governor of California…no law journals, no bench time…may be advantage not to have a mountain of bench decisions and law journal entries to be overly scrutinized by the GOP confirmation hearing members…

      • The notion that a Supreme Court Justice needs a ton of judicial experience is really very modern.  Previously, politicians with a law background were considered well qualified. Many chief justices were of this mold: Chase, Taft, Warren, off the top of my head, presumably others as well.

      • I don’t think Obama is going to go with someone underqualified. He’s in love with competence.

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        p>The only reason Patrick’s on the MSM radar is the fact that he’s a black attorney who’s friends with Obama.

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        p>And you don’t think the GOP use Ben LaGuer, Patrick’s mortgage comapany ties, or early mis-steps as governor as non-substantive in confirmation hearings? They are running on empty already.

        <

        p>Besides the GOP can’t easily filibuster now, so any scrutiny will be little more than bad publicity.

        <

        p>And the Grand Old Party just lost one of its researchers. Specter is now a Democrat.  

  6. Sorry Dudes, It’s going to be a woman.  Sonia Sotomayor has to be at the top of the list.  Elana Kagan might have had that spot if she weren’t just confirmed as solicitor general.  My gut tells me that she stays there until the likely second appointment.

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    p>But who knows?  He has enough time that he could find someone not on anyone’s short list.  Still, there are enough qualified moderate/liberal women that Obama will appoint one of them, and not our Governor (as much as some of you may want to kick him upstairs).

  7. Saw an interesting piece on MSNBC this morning about a book (forget the title, I was running at the time) that argued that the Clarence nomination actually pushed the USSC to the left.  The book argues that because of Clarence’s stalwart conservative take on con law, Ginsburg and others became firmly entrenched in the left, whereas they might have otherwise been more moderate.

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    p>In any event, interesting times.  Best of luck to whomever Obama picks.

  8. He’s not a judge or academic. He’s a politician. So was O’Connor; and it shouldn’t be a disqualifier, necessarily. Practical experience outside the law might be good to have.

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    p>That being said, if he were nominated, could anyone actually begrudge him for accepting? Compared to what was floated when Obama got elected … cabinet positions are super-powerful, and a great gig, but a few years later you’re done. Governor’s a good gig too. But SCOTUS is the big enchilada — truly one of the most powerful people in the country. I’d tell him to take it.

  11. especially since she has already drawn the rath of Rush Limbaugh – it would be nice to hear that swine squeal with her appointment to the Supreme Court.

  12. According to Jeff Toobin in his book The Nine, Souter was so distraught over the Bush v. Gore decision that he seriously considered resigning then. What made him hang on was the Rule of 80, which gives you a better pension if your age and service equal 80 years or more (so if you’re 65, you need 15 years of service).

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    p>Souter was born in 1939. He was exactly 61 in 2000, and he joined the court in 1990, putting him at 71 Rule of 80 years. Five years after that, 2005, he’d be 66 with 15 years of service.

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    p>But he waited until Bush was out of office. I thank him for his service, and the correct vote in Bush v. Gore, but I thank him for holding on most of all.  

  13. My guess is Kathleen Sullivan, who is currently dean of the Stanford Law School. I do think it will almost certainly be a woman, particularly since the current ratio is 8 to 1.

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    p>By the way, though I think it’s unlikely, I would like to see more non-judges and non-academics on the Court. Given how much of the Court’s work is statutory interpretation, it would be nice to have somebody who actually worked in a legislature.

    • Legislating is the legislature’s job, not the USSC’s job.  Don’t want to blur the lines too much by nominating former Congressmen/women to the USSC.

      <

      p>More academics, please.  Especially constructionalists (ducking).

    1.  It is not going to be Deval Patrick.  I agree with sco: this appointment will almost certainly go to a woman.  I also think that this appointment (though possibly not later ones — more on that in a sec) will be a reasonably traditional-looking one, i.e., a sitting federal judge, most likely an appeals court judge.

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    p>2.  Most of the names mentioned here — e.g., Sonia Sotomayor and Elena Kagan — are on pretty much everyone’s short list.  Both of those would be confirmed, but the confirmation hearings wouldn’t be pretty, as conservatives dislike them both and are well prepared for them.  Therefore, Obama would gain a certain amount of advantage by naming a dark horse — e.g., my suggestion of Sandra Lynch, and there are no doubt others.

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    p>3.  That said, Sotomayor would be the first Hispanic member of the Court.  That’s a big deal.  Obama will find it difficult to resist using his first appointment to make history once again.

    <

    p>4.  With respect to a non-judge being named: it probably won’t happen for this appointment, but I would not be at all surprised to see it for the next one.  As has already been noted, there is a long history in the U.S. of Supreme Court Justices with no prior judicial experience, including some of our most distinguished (Earl Warren immediately comes to mind), though the practice has fallen out of favor in recent years (the most recent such appointee was William Rehnquist, who went straight from the Justice Department to the Court).  IMHO, political experience, far from being a “disqualifier,” is a net positive that taps into a fine tradition that should be revisited.  And prior judicial experience, while useful in some respects, has the unfortunate side-effect of providing opposition researchers a wealth of information.  Michigan Governor Jennifer Granholm’s name has already been bandied about.  I doubt she’ll get it this time, but she could easily get it next time, as could any number of other politicos.

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    p>5.  The last time a president nominated three or more Justices in a single term was Reagan’s second term (Scalia, Kennedy, and Rehnquist’s promotion to Chief).  However, since Rehnquist was already on the Court, that doesn’t really count.  So you have to go back to Nixon’s first term, in which he named Justices Burger, Blackmun, Powell, and Rehnquist.  

    • Everyone always says it’s time for a woman (or another woman) until push comes to shove and it’s time to decide…then it’s time for another man…diversity and gender are not the same thing in politics…as history teaches us.

      • Look at Reagan’s appointment of O’Connor.  He could easily have gone with another male appointment — that was certainly the path of least resistance, since there were lots of male judges around who better fit the conservative mold than she did.  

        • David, hate to admit this but, truth is, Ron Reagan wasn’t as poll-driven and PC as today’s Democratic (and GOP) pols…he appointed fellow Californian Sandra Day O’Connor because he wanted to do so…always knew it would be a GOP prez that would appoint the first woman.

          • SDO’C was born in El Paso Texas.  She went to Stanford undergrad and law (where she dated future Chief Justice William Rehnquist).  She was in CA for a while, but moved to Arizona when she was around 28 years old.

          • As stomv points out, that’s a big negative.  At the time she was appointed, O’Connor had been an Arizonan for many years.

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            p>But I basically agree with your larger point: Reagan appointed her because he wanted to.  I think Obama will do the same thing — appoint the person he wants to appoint, because he wants to.  And the likelihood that that person is not a woman is, IMHO, quite low (but nonzero).

      • There are too few seats to be bean-counting with demographics of ethnicity or gender.  I believe the Supreme Court should consist of the nine most brilliant legal minds in the country with no regard for the other factors.

        • Other things being equal, it’s better to have someone who is likely to serve for a long time.  The question, of course, is when “other things” are “equal.”  You don’t want a 25-year-old 1st-year associate being nominated.  But there are plenty of people in their 50s, or even 40s, with enough experience and credentials to be fully qualified.  The marginal benefit of having someone like Tribe on the Court (and IMHO the benefit would indeed be marginal) is outweighed by the likelihood of a relatively brief tenure, during most of which he will be a fairly junior Justice who won’t get the opportunity to write many important opinions.  That’s just the way it works.

          • But I’m old enough to remember when the fact that it is a lifetime appointment was considered reason for restraint. The change was probably Scalia, who was considered really young when he was appointed.

            • Joseph Story was appointed at age 32 — still the youngest appointee in history — and that was in 1811.  I can’t find a quick reference listing the ages of all the Justices when they were appointed, but I do think that an appointment at age 67 would be unusually old, even by historical standards.

            • I get a tad obsessive about this stuff, so here you go.  If nominated, Tribe would be the oldest first-time nominee ever to the Supreme Court.  Charles Evans Hughes was also 67 when nominated to be Chief Justice in 1930, but that was a promotion – he had already been on the Court for 20 years.  The current record-holder is Lewis Powell, who was appointed by Nixon at age 64.  Most nominees in the last 100 years or so have been in their 50s.  In earlier times, the ages tended to be a bit younger, presumably due to shorter life expectancies.

              • I know when I’m throughly pwned. I blame the media, which treated 55-year-old Sam (Sc)Alito like he was fresh out of law school. John Roberts even more so.

                <

                p>So what is the median?

              • Lifespans, particularly for the rich and privileged, have expanded greatly over the last 100 years.  A nominee in their 50s in the early to mid-nineteenth century is equivalent to one in the early 70s today.

            • Has been that this is a factor at all, because each side wants to load the court with someone who lines up right, and will live for 70 more years.

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              p>Quality of non-abortion jurisprudence thus can suffer.

                1. Penumbra and emanation preservation. Keep some kind of right to privacy, please, please, please.
                2. Commerce Clause. The Federalist Society has been gunning for overturning the New Deal era interpretation of the Commerce Clause. Success there destroys environmental and food safety regulations.

  16. to throw another fake bone to the LGBTs.  I’m only half kidding.  Not meaning to derail the thread, but did you see his latest on DADT?

    • … Barney Frank!

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      p>Seriously.  I would love to see Barney Frank on the court.  Not because he’s gay, but because he’s Barney Frank.

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      p>Last I checked, he was any more ‘self-loathing’ than your average congresscritter  =-).

    • Until one of the conservatives retires, Anthony Kennedy is the swing vote. We want someone on the Court who can sway Kennedy. I don’t know who that is, but it seems to me that a legislator, someone skilled at convincing colleagues and gathering votes, is what will give us the most help.

  17. I think he’d make a great SCJ. He also has the advantage of being both Barack and Michelle’s advisor at Harvard Law.

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    p>I saw him speak at BU about year ago. The guy seems totally brilliant and has a passion for justice.

    • within the realm, but I’d prefer a solid liberal who is a bit younger.  I, of course, am absolutely unqualified to know if he’s at all qualified.

  20. Some commentators have pointed out that in the past, we had many more people with experience in private practice, in trial courts, or in the executive or legislative branches of government. Fair enough, but I think this doesn’t account for the real, and relatively recent, growth in complexity in constitutional and administrative law, which are really what the Supreme Court focuses on. These are now full-blown academic fields with a rich literature, different schools of thought, etc. Just as an example, the most difficult and complex courses I took in law school were “Federal Courts,” which deals with the jurisdiction of the federal courts in light of federalism, the separation of powers, and the administrative state, and “Administrative Law,” which as its title suggests deals mostly with administrative agencies making law and deciding cases, and judicial review of their actions. And the justices, some of whom expressly adopt theories of interpretation like textualism, originalism, or “the living constitution,” are part of a conversation between the courts, litigants, and the academy. So I think it is much more important than it was in the past to have someone conversant with these fields.

    <

    p>Now, I could imagine a president saying that he wanted to buck this trend and bring the Supreme Court back down to earth, or closer to the people, or whatever. But since, at least in large part, the growth in complexity in constitutional law is part of the great expansion of constitutionally guaranteed rights that has taken place since the 1960s, it seems to me much more likely that a conservative would take that view. And I think that’s probably as it should be, since without the complexities that have developed in constitutional law since the 1960s, much of the rights revolution would be impossible. And I am sure the President does not want that.

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    p>So I think the President should appoint an academic or an appellate judge with good experience in these areas. I think the short lists we have seen, which focus on such candidates, are likely accurate. And I agree with David that even if Gov. Patrick had not taken himself out of the running, he would not have gotten the nod.

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    p>TedF

    <

    p>

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