Replacing the Replaceable: the Fallout from the Souter Retirement

Of course, given the high stakes game that is today’s Supreme Court confirmation process, the million dollar question is who President Obama will appoint as Justice Souter’s successor.

It would be appropriate for the president to nominate a “stealth-conservative” in tribute to Souter’s rapid and radical lurch to the left once he was confirmed to the Court. We’re at least a couple of justices behind on that front.

However, given the president’s missive before a crowd of Planned Parenthood radicals during the campaign season, don’t hold out hope for stealth Scalia. The president said, “We need somebody who’s got the heart, the empathy, to recognized what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old. And that’s the criterion by which I’m going to be selecting my judges.”

So in other words, someone who has little respect for the rule of law or the Constitution of the United States.

Speculation is rampant that President Obama will either nominate a woman or a Hispanic (or both). Several possible nominees include:

Elena Kagan, Solicitor General. Recently the dean of Harvard Law School, Kagan is the country’s first female Solicitor General. She served in the Clinton White House and was previously nominated for the DC Circuit, but ran out of time at the end of President Clinton’s 2nd term.

Judge Sonia Sotomayor, US Court of Appeals for the 2nd Circuit. Appointed to her first judgeship by the same president who appointed Justice Souter to the Supreme Court, Sotomayor is praised as a moderate who might have bipartisan appeal (so take that Bush I correlation seriously).

Judge Diane Wood, US Court of Appeals for the 7th Circuit. Judge Wood taught at the University of Chicago Law School at the same time President Obama was a lecturer there.

Other names are thrown about, including Interior Secretary Ken Salazar and Cass Sunstein, now in the Obama Administration, but most speculation has surrounded the above three candidates.

Whoever is confirmed to the seat is virtually guaranteed to shape the direction of the Court over the next several decades, as the average tenure of a justice is 26 years these days. While replacing the liberal Souter with another liberal won’t upset the balance of power on the court in the short term, had Souter’s resignation occurred 12 months ago, we would perhaps be looking at a solid 5 vote conservative block with the inconsistent Justice Kennedy as the occasional 6th. Should one of the conservatives or Justice Kennedy retire while Obama is still in office, this nomination could help radically shift the Court’s jurisprudence further to the left.

What remains to be seen, however, is how much political capital the president is willing to spend on a Supreme Court confirmation. Part of the reason Souter was nominated is that President Bush didn’t want to endure a long and contentious confirmation fight (as had occurred with Robert Bork under President Reagan’s tenure and as would later occur with Bush’s second nomination, the venerable Justice Thomas).

While the Democrats have a solid 59-seat majority in the Senate, judicial nominations are still critical in the minds of many Americans, and the majority party may not want to face a public in 2010 angered over a radical leftist nomination to the Supreme Court. Further, given that President Obama wants to drastically change health care, energy policy, education policy, and our free market economic system, he and his allies may not have the political stomach for a nasty confirmation fight. Let’s hope not. The Supreme Court has done enough damage already.

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One thought on “Replacing the Replaceable: the Fallout from the Souter Retirement

  1. I think Sotomayor is the most likely candidate out of the three you mention. She is a Puerto Rican, moderate-to-liberal woman. Given the perceived need to have representatives from every segment of society on the Court, a Hispanic woman would fit the bill. A Hispanic pick would be a good political move for Obama since they came out for him in the election. It would also help to court them for 2010 and 2012.

    The stealth conservative pick should be Janice Rogers Brown from the DC Circuit. She’s a Black woman and therefore meets all the “minority” criteria . . . there’s just the ideology problem. But you’d be a fool to question her integrity or qualifications.

    As with others Obama will likely make, this is going to be a replacement of a liberal with a liberal. The worst that can happen is that he finds some rather young people (like Bush did with Roberts and Alito) who will linger on the Court for decades.

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