Friday, May 01, 2009

Justice Souter to retire

Apparently, Justice Souter is set to retire. Although he's younger than some of the more liberal members of the Court like Stevens and Ginsburg, he has reportedly never liked living in Washington, D.C. and wants to return to New Hampshire.

As Nina Totenberg reports, this won't likely change the ideological makeup of the Court, but will give President Obama the opportunity to appoint a woman and start trying to add his influence to the Court.
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.
Conservative Ed Whelan is not enthusiastic of any of those choices.
Or Second Circuit judge Sonia Sotomayor, whose shenanigans in trying to bury the firefighters’ claims in Ricci v. DeStefano triggered an extraordinary dissent by fellow Clinton appointee José Cabranes (and the Supreme Court’s pending review of the ruling). Or Elena Kagan, who led the law schools’ opposition to military recruitment on their campuses, who used remarkably extreme rhetoric—“a profound wrong” and “a moral injustice of the first order”—to condemn the federal law on gays in the military that was approved in 1993 by a Democratic-controlled Congress and signed into law by President Clinton, and who received 31 votes against her confirmation as Solicitor General. Or Seventh Circuit judge Diane Wood, a fervent activist whose extreme opinions in an abortion case managed to elicit successive 8-1 and 9-0 slapdowns by the Supreme Court.
Well, that is what winning elections gets you. Conservatives may criticize, but with 60 votes, Obama will get his nominee through. And there are enough Republicans who are honorably opposed to using the filibuster against judicial nominees even when the president is a Democrat. William Jacobson at Legal Insurrection posits a scenario whereby Specter's defection will actually give the Republicans the power to block a nominee in the committee. It's an intriguing possibility, but don't bet on it. The majority party needs the vote of one minority member to move a nominee out of committee. Don't rest your hopes on Lindsay Graham. This will be the first of probably two or three nominees that Obama will have and the Republicans won't be able to stop them any more than the Democrats could stop Roberts or Alito, or even Thomas, from taking their seats on the Court.