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Souter to retire from Supreme Court

The liberal justice is expected to step down this summer. Some legal experts speculate that Obama will nominate a woman to fill Souter's spot on the high court.

May 01, 2009|David G. Savage

WASHINGTON — Justice David H. Souter, a New Hampshire Republican who became a key liberal vote on the Supreme Court, reportedly plans to retire this summer, clearing the way for President Obama to make his first nomination to the high court.

Since the court has only one woman among its nine justices, most observers have predicted that Obama will select a woman for the first court opening. There is no obvious successor to Souter, and the administration has had just three months to sift through potential nominees.

Souter's retirement is not likely to change the court's ideological balance. He has been a reliable liberal on all of the major issues decided recently, including abortion, civil rights, religion, Guantanamo Bay detention and the death penalty. Obama is expected to appoint a replacement who holds similar views.

The justices are due to meet this morning in their private conference. Souter is expected to disclose his retirement plans to his colleagues then, court sources said.

His pending departure was first reported by NPR, NBC and the Associated Press on Thursday evening. A Supreme Court spokeswoman refused to comment.

Souter's departure would come as no surprise to his colleagues and others who know him well. He has been in good health and, at 69, is not old by the standards of the high court. But he intensely dislikes Washington, has few friends in the capital and leads a solitary life. He has often said that his mood brightens when he goes home to New Hampshire.

Two of his favorite colleagues -- John Paul Stevens, 89, and Ruth Bader Ginsburg, 76 -- have been the center of retirement speculation. But Souter had not hired law clerks for the fall, leading many to suspect that he planned to step down at the end of the court term in June.

Souter has also voiced frustration with the court's conservative drift of late.

On Wednesday, he sharply questioned a lawyer who wanted the court to strike down part of the historic Voting Rights Act of 1965. Souter said the nation had made progress on civil rights but added that he did not see a radical change that would justify repealing much of the act.

Souter's pending retirement puts another important issue before Obama. The president is a former professor of constitutional law at the University of Chicago and has knowledge of the issues before the court. He also knows many lawyers and judges he could nominate.

Obama chose Elena Kagan, dean of Harvard Law School, to be solicitor general, the administration's lawyer before the court. But she has yet to argue a case.

Judge Diane Wood, an appointee of President Clinton to the U.S. 7th Circuit Court of Appeals in Chicago, is likely to be considered. She has taught at the University of Chicago and knows Obama.

Two other judges who have been mentioned as possible nominees include Sonia Sotomayor of the U.S. 2nd Circuit Court of Appeals in New York and Kim Wardlaw of the U.S. 9th Circuit Court of Appeals in California.

Liberal activists have high hopes that Obama will appoint a solid liberal. Though Clinton's appointees -- Ginsburg and Stephen G. Breyer -- have voted reliably on the liberal side, neither has been a champion of social justice in the style of Justices William J. Brennan and Thurgood Marshall.

During the campaign, Obama praised Souter as a sensible and reasonable judge who is not an ideologue.

Obama also said he wanted to appoint a justice who had empathy for real people with real problems. He suggested that some of the justices, although academically brilliant, have little understanding of those who struggle in their daily lives.

Some conservative critics countered that the first obligation of the justices is to follow the law, not to decide in favor of certain people or groups.

One intriguing possibility is that Obama will look outside the courts for a nominee. All nine current justices were appeals court judges when they were nominated. None has ever been elected a legislator or governor.

By contrast, the court in the 1950s was led by former California Gov. Earl Warren and had justices who had served in the Senate, as U.S. attorney general and in a variety of other government posts.

Souter will be remembered as one of many justices who turned out entirely different than expected. When nominated by President George H.W. Bush in 1990, he was called a reliable conservative who would vote on the right. John H. Sununu, Bush's chief of staff, referred to him as a "home run for conservatives."

But within two years, it became clear that the White House did not really know its nominee.

In 1992, Souter cast a key vote with Justices Sandra Day O'Connor and Anthony M. Kennedy to preserve Roe vs. Wade and the right to abortion.

And in the years afterward, he voted regularly with the court's liberal bloc.

This week's party switch by Pennsylvania Sen. Arlen Specter -- to become the 57th Democrat in the chamber -- may also give Obama more leeway in his selection.

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