U.S. Justice Souter Announces Retirement from Supreme Court

U.S. Supreme Court Associate Justice David H. Souter tendered his resignation to President Barack Obama, who was tasked with nominating his first justice to the court less than four months after taking office. Souter, 69, had been nominated in 1990 by Republican President George H.W. Bush, becoming the court's 105th member. However, Souter largely disappointed Republicans by consistently siding with the more liberal side of the bench, particularly in recent years.

In his resignation letter to Obama, Souter said he would step down in the summer, after the court finished its 2008-09 term. Souter was the fourth-youngest member of the nine-justice court, and was considered to be in good health. He did not publicly explain the reasons for his departure, but was known to have a distaste for life in Washington, D.C., and had once described the position of Supreme Court justice as "the world's best job in the world's worst city." Friends also reportedly said he was eager to return to his hometown of Weare, New Hampshire, where he could indulge in his passions for hiking and reading about law, history, literature and philosophy.

Disappointed Conservatives

Bush in July 1990 nominated the little-known Souter to replace retiring Justice William J. Brennan Jr.-one of the staunchest liberals on the court-at the urging of White House Chief of Staff John Sununu, a former governor of New Hampshire. Sununu at the time told fellow Republicans that Souter was a "home run" for their cause. Souter was subsequently confirmed by the Senate in a 90-9 vote, and took the judicial oath in October 1990.

At the time of his nomination to the Supreme Court, he had been a judge on the U.S. 1st Circuit Court of Appeals in Boston, Massachusetts, for a mere two months. Before that, he had served as an associate justice on the New Hampshire Supreme Court from 1983 to 1990.

Souter was not long at the Supreme Court before he disappointed conservatives by coauthoring a 5-4 majority opinion in 1992 that upheld a woman's right to an abortion, first established in the 1973 case Roe v. Wade. Souter joined Justices Anthony M. Kennedy and Sandra Day O'Connor-both of whom had been appointed by Republican President Ronald Reagan-in saying that the right to an abortion was "a rule of law and a component of liberty we cannot renounce," in the case Planned Parenthood of Southeastern Pennsylvania v. Casey.

Besides his support for abortion rights, Souter displeased conservatives by voting to strengthen the separation between church and state; to limit the use of capital punishment; to defend affirmative action policies; and to grant rights to suspected terrorism detainees held at the U.S. prison camp at Guantanamo Bay, Cuba.

Souter in recent years had often joined Justices Ruth Bader Ginsburg, Stephen G. Breyer and John Paul Stevens to form what was considered the liberal wing of the current Supreme Court. Scholars said that during Souter's tenure, his own legal philosophy had shifted in a liberal direction, while the ideological tenor of the court as a whole moved to the right. During much of Souter's tenure, the court was presided over by Chief Justice William H. Rehnquist, who was credited with guiding it in a conservative direction. The last two justices to join the court, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., were nominated in 2005 by Bush's son, Republican President George W. Bush, and had thus far taken generally conservative positions.

As a jurist, Souter was thought to adhere to the pragmatist position, believing that judges should consider the country's historical progress when making a decision, as well as a case's political and social context. Pragmatists were also defined as having a more flexible interpretation of the Constitution. Souter was often opposed by the court's declared formalists-such as Justices Clarence Thomas and Antonin Scalia-who voiced distrust of the court's ability to interpret such progress (which, they asserted, came under the purview of Congress), and said that the court should limit itself to interpreting the letter of the law.

Obama Praises Souter for Independence

Obama May 1 praised Souter as being a "fair-minded and independent judge." Obama said, "He came to the bench with no particular ideology. He never sought to promote a political agenda. And he consistently defied labels and rejected absolutes, focusing instead on just one task-reaching a just result in the case that was before him."

Obama that day said he would seek a justice who would rule with "empathy" from the bench. He said, "I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a casebook; it is also about how our laws affect the daily realities of people's lives." He added, "I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role."

Obama would be the first Democratic president to nominate a justice since Bill Clinton nominated Breyer in 1994. His choice was expected to leave the court's current balance-with four liberals, four conservatives and Kennedy, who was considered a swing vote-unchanged. It was widely reported that Obama was considering replacing Souter with a woman, since Ginsburg was the sole woman on the current court. It was also reported that Obama was considering nominating the court's first Hispanic.

Senator Patrick Leahy (D, Vermont), chairman of the Senate Judiciary Committee, May 3 joined others in calling on Obama to nominate someone outside the federal appellate court circuit, since every member of the current Supreme Court had been recruited from there. Leahy said Obama should nominate someone with more "real-life experience," such as an elected official.

Reported contenders for the position included Judge Sonia Sotomayor of the U.S. 2nd Circuit Court of Appeals in New York City; Elena Kagan, the Obama administration's solicitor general; Judge Diane Wood of the U.S. 7th Circuit Court of Appeals in Chicago; Judge Kim McLane Wardlaw of the U.S. 9th Circuit Court of Appeals in San Francisco, California; Chief Justice Leah Ward Sears of the Georgia Supreme Court; Massachusetts Governor Deval Patrick (D); Michigan Governor Jennifer Granholm (D); Kathleen Sullivan, a professor at Stanford Law School; and Harold Koh, the dean of Yale Law School, who had been nominated by Obama to become legal adviser to the State Department.

Obama said he wanted the Senate to confirm his nominee before the Supreme Court started its 2009-10 term in October. Obama's nominee was expected to be confirmed with relative ease. With the recent defection of formerly Republican Senator Arlen Specter (Pennsylvania), there were 59 senators in the Democratic caucus, and possibly a 60th pending the outcome of an election dispute in Minnesota, where Democrat Al Franken held a narrow lead. However, Senate Minority Leader Mitch McConnell (R, Kentucky) signaled that Republicans would resist confirming a nominee with "partisan leanings." Analysts said a protracted confirmation battle could undermine Democratic plans to pass major legislation in 2009 on health care and energy.

Senator Sessions to Lead GOP Challenge

Senate Republicans May 5 named Senator Jeff Sessions (Alabama) the ranking Republican on the Judiciary Committee, where he would lead the Republican effort to challenge Obama's nomination. The position became vacant after Specter, the previous ranking member, switched to the Democratic party the previous week. Sessions opposed abortion rights, and professed adherence to constitutional formalism.

Sessions, a former U.S. attorney, in 1986 had seen the committee reject his nomination to become a federal judge, over controversial remarks he had made that critics said were racist, allegations that Sessions rejected. Sessions May 4 said the experience gave him a unique perspective on the confirmation process, and that he would have "a little more sympathy than normal for the nominee." However, he added, "I don't mind tough questioning of a nominee, I support that."

Sources

Mondics, Chris. "Justice Souter says goodbye to colleagues"The Philadelphia Inquirer. 2009. 6 May 2009
Harper, Liz "Justice David H. Souter" Online News Hour. 2009. 1 May 2009.