Justice David Souter To Retire

225px-davidsouterAssociate Justice David Souter, 69, has announced that he will retire from the Court after 18 years. The announcement comes as a complete surprise because, at 69, Souter is one of the younger members of the Court and was not expected to retire before John Paul Stevens or Ruth Bader Ginsburg. He is twenty years younger than Stevens, who appears intent on remaining on the Court at least for the rest of this term.

Souter was appointed by President George H.W. Bush in 1990. He was part of a pattern of nominees selected in part due to his low profile and uncontroversial history. Like Sandra Day O’Connor, there was little for democrats to attack in Souter’s history. He had a powerful supporter in John Sununu, Bush’s chief of staff. Yet, he proved far more liberal than anyone in the GOP imagined — becoming a lightening rod for the right who would later insist on ideological purity and almost robotic loyalty in the selection of Clarence Thomas, John Roberts, and Sam Alito.

This will now be the first (but probably not the last) nominee for Barack Obama. The nominee sweepstakes will now begin. One interesting prospect would be Diane Wood, who serves on the United States Court of Appeals for the Seventh Circuit in Chicago and taught at the University of Chicago when Obama was on the faculty. Wood would be a nod to Obama’s Chicago roots and would add a second woman to the Court. She would also present a relatively easy confirmation.

Sonia Sotomayor on the Second Circuit would be more controversial. She has a reputation for being something of an overbearing and at times hostile judge — the complete opposite of Justice Souter. She has many critics on and off the court.

I personally like Wood, but I would prefer Harold Koh, the former Dean at Yale Law School who would be the first Asian-American on the Court. He is one of the most brilliant academics in America. He would be more controversial and has already been targeted in his current confirmation hearings for a position in the Administration. However, he would be a prize worth fighting for.

Cass Sunstein has also been suggested. However, civil libertarians would view his nomination as another disappointment and would likely oppose him. He was one of the earliest voices against an prosecution for war crimes and is viewed as favorable (or at least not particularly opposed) to some of the Bush policies on surveillance and other controversial national security programs.

The loss of Souter will be felt by Court watchers. I was once asked who I would keep on the Court if I had my druthers. I mentioned Souter because he was one of the few members who did not believe that he was anointed rather than appointed to the Court. Souter is a remarkably self-effacing and gentle person. He is universally liked by the other justices and Court staff. I particularly appreciated that, unlike some of his colleagues, Souter never sought public acclaim or attention. He worked very hard at getting decisions right. While he was more liberal than many Republicans wanted, he was not as predictable as some on the Court. He remained more of a jurist than a purist in his decision; trying to resolve issues without ideological flourishes or grandstanding.

I am not surprised about this retirement in one sense. Souter always maintained his personality and persona separate from the Court. He is an intensely private man. I always viewed him as the quintessential hardy East Coast Yankee stock: quiet, strong, and principled. While his departure will not result in a great shift on the Court or the loss of a dominant voice, his departure will remove someone who bought great civility and dignity to the Court. His was a reassuring voice at a time of shrill ideology and controversy. He will be remembered well for his time on the Court and is a towering example of how the first George Bush (who regretted his selection) inadvertently made the right decision for the wrong reason.

There is a very funny story about how Souter and Justice Breyer were routinely confused for one another. It was…a running joke at the Court that outsiders frequently mistook Souter and Breyer for each other. On one trip back to New Hampshire, a couple went up to Souter at a roadside dinner and mistook him for Breyer. Souter went along rather than embarrass them and correct. He was then asked, “Justice Breyer, what’s the best thing about being on the Supreme Court?” He reportedly thought deeply and responded, “Well, I’d have to say it’s the privilege of serving with David Souter.”

I would have to agree.

For the latest story, click here and here.

57 thoughts on “Justice David Souter To Retire”

  1. Former Federal LEO

    ATL Poll: Who Should Replace SCOTUS Justice David Souter?

    Don’t tell anyone, this is a closely held secret. NO BODY ON THE UNITED STATES SUPREME COURT has to be a licensed Attorney. So Former Fed LEO, you could have your name submitted.

    This is a closely guarded secret, you ask why? I did hear you ask did you not? Nothing in the Constitution requires it. Period.

    So Justice Leo, how does that sound?

  2. Justice Souter is a good man and I trust that he will reconsider.

  3. JILL – STOP! Please!

    Just STOP!!!

    As apt as AY’s chess analogy might be, otherwise, it is the ‘previous administrations Texas Rambler-Gambler Poker ‘know when ‘Hold ’em’ know when to Fold’ ’em approach to governing with which we are left to deal.
    There are many things that need to change and/or be re-instituted- by LAW and BY Congress to get back to where we were.

    And NONE of it is going to happen overnight or within 90 days of a new administration. So, forget about it!

    One way, besides legislation, to accomplish what all of us would like to see, is by positioning the arguments toward the ‘right’ cases with full weight of the evidence being heard before what, ideally should be, an unbiased Court in order to set the precedent that we would like to see.

    None of it is an easy task , and , in many respects, nor should it be.

    Obama doesn’t have the luxury of having everything in place the way he would prefer coming in, as I have noted, repeatedly, on previous occasions. He has to deal with things as hey are.

    This is why I can’t STAND your posts, Jill.

    You are not only incredibly naive you are totally ‘unrefined’ when it comes to the Law, in particular, and completely ‘unsavy’ when it comes to Politics, in general.

    We ‘turlees’ started out as a delightful and entertaining intellectual salon with daily commentary on Constitutional Law
    and holding the previous administration accountable for violations to Federal and Internaatinal Law.

    SOMEHOW, Jill, you’ve managed to turn it into something less than our beginnings and particularly since ‘deeply worried’s’ departure due to his fatal disease. And I resent you for it in addition to my other open and legitimate complaints as to your daily behavior.

    You DROVE DW away, during his final days here, with your ‘loose lips’ and your uninformed ‘take’ on his illness and I will never forgive you for that.

    HIS news belonged to HIM, only!

    You had NO right to speak about it, as misinformed and uneducated as you are in medicine, in his absence. You never knew him, much less appreciated him for who he was.

    You can go screw yourself, Jill.

    Furthermore, stay the ‘frick’ away from me, mespo, AND JT!

    Patty C
    a/k/a ‘Etta Place’
    played by the beautiful, Katherine Ross.

    p.s. I look very much like Katherine Ross ie, Etta Place, but more importantly I live like her on my farm – and in the movie ;P


  4. Hans,

    You may, But I will not, will not support your candidate. As a matter of fact. I know with District Court and Court of Appeals it has become common place “Hold Up” the nomination if a Senator objects to the nomination being submitted to the Floor.

    Believe this or not, even while the GOP held the Majority, Stabenaw was able to stop a COA from getting his vote on the Senate floor.

    It was not until the Dems regained control that she ultimately withdrew here objection.

    I do not know who has the ability to object to confirmation once it passes the Committee of the Judiciary. I would suspect that when, not if, Specter is confirmed as the Chair, this is gonna create some unusual issues.

    But this is just my guess.

  5. Buddha,

    I’m not arguing that there is a time element involved. I’m saying that there are disastrous consequences of waiting (and I pointed ouit some of those in my first post on this thread) As yet, no one will address the bad consequences that JT pointed out, of waiting. I’m also pointing to evidence that it is not so much a time element that is keeping us from proceeding, rather it is that neither the President nor Holder wishes to proceed and that is why they are not proceeding. They have both as much as said so on several occasions–looking forward, giving blanket amnesty before a full investigation, etc. Why do we keep doubting their word, which matches their lack of action and instead keep divining secret plans that match neither words of deed?

  6. Jill,

    And for that I will respect your belief. I do not wish for you to change your belief. This you are entitled to this.

    If you have ever played chess, you always have to think of the next move and do a strategical analysis of what your opponent is likely to do.

    FYI, Do you know that it was not a crime to protest and smoke weed at the same time at the Washington Mall until the 1970?

    Yes it was legal to do both as no laws banned either. It was not until someone in the Nixon Administration figured out that Hippies Protested and Smoked them funny Cigarettes, so to cut down on problems, they outlawed both.

  7. First,

    What mespo said.


    Jill and AY, you are both right in theory, but I submit that the proof is in the eating of the pudding and this one’s still in the oven. Jill, I do not think what AY is saying is a red herring, but a viable observation based upon historical evidence. Yes, we need to move quickly, but sometimes fast is not an option. Should we as a people be patient and wait 20 years for the torturers to be held accountable? Absolutely not as this issue so fundamentally impacts the Constitution that failure to resolve it results in the total discrediting of ALL of our legal system. But AY is perfectly correct in implying that there is a time element to bringing justice to fruition.

  8. A.Y.,

    There is no bearing on the cases you site and my arguments about 1. the international effects of our failure to follow our clear law/ treaty obligations and 2. the fact that domestic actions do not support the many claims of Obama’s secret plans. In fact the action of arresting peaceful protestors outside the WH for protesting againist torture, is an complete contradiction of the secret plan that Obama wishes to get the public support before he will proceed. The argument you are advancing is called a Red Herring, or on South Park, the Chewbacca defense!

  9. Jill,

    Mame, I do not know how to answer you. You have your ism’s I have mine. Do you remember how long it took to get to the bottom of some of the civil rights violations?

    Do you recall in 2001, that Thomas E. Blanton Jr. was the second ex-Ku Klux Klansman that was convicted in the 1963 bombing of a church in Birmingham, Ala., It claimed the lives of four black girls. I believe that he was sentenced to life in prison.

  10. Matthew

    Certainly you’re right. Just as certainly, this was a significant part of the calculus when Bush appointed those two relatively young men to the court. The four oldest Justices are all pretty reliable liberal votes and would theoretically make up the next four appointments based solely on age. The four younger members, Roberts, Alito, Thomas and Scalia, are reliable conservatives. Justice Kennedy is both relatively young/old and relatively liberal/conservative. It appears President Obama will need five picks to turn the court decisely to the left.

  11. A.Y.,

    We are back to Obama’s secret plan with your statment. While Obama is working on his secret plan(s) we are left with real consequences of a failure to appoint an independent prosecutor. Let me explain one real consequence. Jeremy Scahill writes about the carryover of torture into Iraqi prisons. Following is an small excerpt:

    **MUST READ: New UN Report Shows the US Combo of Torture and Impunity Thrives in Iraqi Prisons: Iraqi authorities widely use torture to interrogate prisoners and extract confessions without fear of consequence. Sadly, the US doesn’t have the credibility to confront these crimes.”

    We tend to look at US domestic politics and forget the rest of the world. This comes from being a superpower, but these are real issues that must be addressed. This is a point JT also made on Tweety’s show yesterday. We look untrustworthy to the rest of the world. These are the kinds of things that bring about “blowback”. (find both stories at Rebel Reports)

    Now onto domestic political reality. Also from Jeremy Scahill yesterday:
    “Mass Arrests at White House: More than 60 people were arrested at the White House in an anti-torture protest on President Obama’s 100th day in office.” This was a completely peaceful protest. If it is Obama’s secret plan to get the population behind him in bring torturers to justice, arresting people for protesting torture, who used no violence whatsoever, seems like an odd way to further that plan.

    My prediction on the SC nominee is that s/he will favor executive power.

  12. I normally don’t like to make polarizing statements, but this article only serves to remind me that we are stuck with Alito and Roberts for the next thirty years or so… 🙁

  13. Justice Souter is 69 and was a disappointment to the Republicans as he was a George W H Bush Appointment. He was a social liberal a true Yankee Republican in the sense of the word. The likes of him will be gravely missed. The Presidents have found that when they make this appointment they rarely have control over the out come. To me he was in the likes of Brennan and Marshall although for different reasons.

    It was found the longer he was on the bench the more socially liberal he became. It will be the 1st Obama appointment and hopefully he selects well.

    I hear people say why does not Obama bring charges against Bush et al. This is one of the reasons, say that he did bring charges, where would the charges ultimately end up? In the US Sct where the Bush Appointees are more numerous than the non Bush. Do you think Obama really wants to be show what a “dog and pony” show is all about? If memory serves me correctly, 2 more will retire within the next 2 years because of age and health.

    As the song goes “Time, time, time is on my side, yes it is, yes it is”

  14. You gave two figures for Souter’s age. The first one (~70) is correct and not 89.

  15. Well, who among the attorneys here could fathom the thought of serving on the court with some of the current justices? My guess is that Justice Souter, given his temperament, simply burnt out from serving with lesser jurists.

    Professor Turley, do you meet the qualifications for a Supreme Court Justice?

  16. Decent men who shun the limelight once appointed to high positions are rare indeed. Even more so those who quietly and competently do the work. The antithesis of Churchill’s remark, he is a humble man with little to be humble about. I wish him well in his retirement.

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