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. Hon. Jon M,

    Who should replace Justice Souter? A centrist, etc.

  2. Sorry to say guys but as much as we all (including me) might wish it Jonathan has no chance, right now, for a SCOTUS appointment. The pity is that the same qualities that would make us be thrilled with his appointment, are hose that would doom it. From the standpoint of our country’s ruling elite, the Corporatists, our Professor would be a “loose cannon” actually using his conscience and his visceral wisdom to render judgment. While we can name many who now and in the past have stood up to this measure once in SCOTUS, none were believed that way before nomination, rather they were seen as creature of the system. Earl Warren, former Republican Governor of California exemplifies this. As did William Douglas, who appeared to have a racist background. I believe that JT would equal or surpass the greatness of these men, but he is too “out front” currently to get the chance.

    As someone once said “Politics is the Art of the Possible.” SCOTUS appointments are always political and right now the best man for the job is not possible. Having raised this let me move on to another issue that has permeated this and many other threads and that is the performance or dereliction of duty of our President. It becomes tiresome to me, especially with this intelligent group, to keep reminding people that the man has been in office for 100 days. Came into it facing a financial crisis, massive unemployment, mortgage foreclosures, failing banks, failing car companies, two ill starred wars, an insane health care system and a tax system where the wealthiest people and corporations are taxed at a rate significantly less than their lesser paid employees.

    He is also facing a broken electoral system, where money rules, as shown by yesterday’s vote in the senate against mortgage aid to needy homeowners, where 12 members of his own party, flush with banks campaign contributions, voted against the people’s interests. Finally, as we all know given JT’s air time and our various threads this country committed war crimes, torture and other extra-constitutional
    behavior that requires redress and punishment. Though a constant campaign of fear waged by Bush/Cheney and supported by a supposedly moderate punditry, more American’s believe that torture keeps them safe, than the truth which is that it doesn’t.

    Throughout my many comments here I have never once said that people should not continue to decry these horrors, nor that punishment is not necessary. It becomes tiresome though to find many threads taken up with self-fulfilling prophecies of why our President is a phony and is dragging his feet. I see all too many pundits on the Left quoted as if their words have deeper insight, meaning and factual basis. I lived through this before in the 60’s and followed “prophets”
    like Howard Zinn, Richard Cloward, Tom Hayden, George Wylie and Alexander Coxburn. They were false prophets and their suggestions made things worse, because in the “purity” of their vision they neglected to understand just how political systems, particularly ours works. In their wake they left more death and destruction, then that they proposed to end.
    Some of these are still alive, like Zinn and Nader, and rather then having learned from experienced they have hardened their original views to justify their own failures.

    The only person from the Left back then who really had it right was the great Saul Alinsky, who truly understood that he must work with the possible, rather than the ideal. His legacy has remained effective all this time and wouldn’t you know it our President, Harvard Law Review in tow, went to Chicago to learn the Alinsky method. As a long time veteran of these wars and as someone who has made many a mistake following false idols/ideals I trust this guy to have his heart in the right place and to understand how to really accomplish much of what our country needs. As a born radical, having entered my seventh decade and still keeping the faith I am overjoyed by our President’s first hundred days. As such though that doesn’t mean that I don’t disagree and don’t protest. It means that I try to put context and insight into how this all is being handled and I conclude that like Clinto with “don’t ask, don’t tell” President Obama would now be having his problems had he faced this directly and not obliquely.

  3. As someone on here who has been watching this site. I am concerned about the mental health of some of people here, one in particular.

    Case in point, why has Patty C described in detail of her dislike of a Jill. What did she do to you, Patty C?

    Who was it that was blasting Patty C for her conduct?

    Today what did this person using the name of “Anonymously Yours” do to upset you?

    Are you so selfish that no one else can experss a view which Patty C has not sanctioned?

    Why the personal attacks on people that you don’t even know?

    BTW Patty C I have read some of your lack luster posts, are you sure you are all together?

    If you are as educated as you claim,
    it has been lost.

    I feel for your Patient’s, as your bed manners are lacking.

    If you have a legal practice, you ought to be glad, I do not know your given name as I would file a Request for an Investigation. I do not deem you as sane enough to represent clients in court.

    I will pray for the redemption of your soul.

    Hon. Jon M.

  4. All of my vote predictions notwithstanding, I would like to enlist the help of that bean counter, erm, biometrician Slartibartfast, to tally the votes ‘cause I just know we are going to become overwhelmed with the voting rush to this Straw Poll.

    Polls are open 24/7 and thar aint no Poll Tax.

  5. How about a Straw Poll.











    The best jurist possible regardless of whatever: FFLEO’s vote

  6. How many people would prefer that President Obama selected a woman jurist for the Supreme Court of the United States?


    In fact, why don’t you just go back o your hole
    -where you came from.

    You are ignorant, IMO.

    Not only can you not complete a sentence in proper English, you can’t even complete an original thought much less an intelligent one.

    Go away…


  8. Cease Fire. Withdraw All Weapons, including but not limited to claws.

  9. Patty C.

    Your comments at 1:17pm were probably not what Professor Turley had in mind when he requested that you stop attacking Jill.
    They really are distasteful and unwarranted. As I recall Jill stated that she has gotten in the habit of not reading any of your posts as they were painful to her; and yet you continue to attempt to get her engage with you, although she is wise to continue to ignore you. Why don’t you just do the same-

    No. While my comments may be considered ‘distasteful’ by those without first-hand experience of the ‘All Jill All the Time’
    BS, my obsevations are certainly not unwarranted nor without merit.

    Furthermore, not only does Jill READ my posts, she stalks me and steals my original ideas and dialogue, here, regularly, without ever giving me the credit for ‘her’ new thinking.

    She uses my original words without ever giving me the credit or understanding MY original thinking.

    Not only is Jill a hack, she is a plagiarist, to boot!!!

    I can’t stand her…

    I am an original turlee, besides being a licensed law graduate,
    I am a physician, as well.

    I KNOW what I am talking about, whereas Jill does not…!!!

    She is full of cappola, in my view.

  10. rafflaw,

    Yes, Professor Turley is the most independent man I have known as a public icon.

  11. CEJ,

    You, others, and I owe all of our respect to Professor Turley.
    Thank You.

  12. Patty C.

    Your comments at 1:17pm were probably not what Professor Turley had in mind when he requested that you stop attacking Jill.
    They really are distasteful and unwarranted. As I recall Jill stated that she has gotten in the habit of not reading any of your posts as they were painful to her; and yet you continue to attempt to get her engage with you, although she is wise to continue to ignore you. Why don’t you just do the same.


    I commend you on your excellent restraint in not commenting on the one-sided “cat-fight” sandwiched in this thread; you stated once before that you would say no more on this nastiness and you kept your word. I will attempt to learn from your fine example!

  13. Well Former Fed LEO,

    I am Dick in Drag, I learned it from my friend J Edgar, we used to trade looks all the time. But in DC I can’t be DC. But I am DC. So you see I have to dress up in Drag do you see.

  14. Well AnonY, this *is* the wild ‘n wooly Internet, your pseudonym is *Anonymously* Yours, and for all I know you *might* be Dick Cheney in disguise. Okay, that was way too low a blow, make that Karl R.

    Thanks for the information. Of course, we all know that sitting judges on courts of appeals have the best opportunity, right?

  15. So Former Fed LEO,

    Did you think that I would misrepresent a fact such as this? Tisck,tisck, tisck.

  16. From Wiki:

    “Because the Constitution does not set any qualifications for service as a Justice, the President may nominate anyone to serve. However, that person must receive the confirmation of the Senate, meaning that a majority of that body must find that person to be a suitable candidate for a lifetime appointment on the nation’s highest court.”

  17. AnonY:

    Yes,I did ask the qualifications questions. Are for sure and for certain?

Comments are closed.