Juatice David H. Souter has decided to retire when the Supreme Court completes its current Term in early summer, the NBC-TV network reported Thursday night. The 69-year-old jurist, who is completing his 19th year on the Court, has passed word of his plans to others, and the White House has been told, according to the network’s account by reporter Pete Williams.  Other news organizations also were reporting that Souter has made his decision not to continue serving.
By leaving office this summer, Souter will be giving President Obama time to select and seek Senate approval of the new Chief Executive’s first appointee to the Nation’s highest court before the Court returns for a new Term on Oct. 5. That process could be slowed, however, if the President chooses a nominee who stirred strong opposition among conservatives. With Democrats in control of the Senate, however, Obama’s choice almost certainly would win approval.
Even if the President were to pick a decidedly liberal new Justice, it would not bring a strong shift in the current Court’s direction, since four conservatives along with their sometime ally, Justice Anthony M. Kennedy, tend to control outcomes on many key issues.
Although there has been wide speculation that Souter would leave the Court fairly soon, he has not confirmed those reports, and neither have his colleagues or the Court’s staff. He long has been understood to be uncomfortable living in Washington, preferring to return as often as he can to his rural home in New Hampshire. He recently spoke of returning to Washington each year for a new Term as if it were something like a lobotomy.
A fomer state attorney general in New Hampshire and former state and federal judge who came to the Court with a reputation of being notably moderate and even conservative at times, Souter has become one of the most reliably liberal members of the Court. His selection by President George H. W. Bush was promoted by White House aides at the time with skeptical conservative organizations as a “home run” for the issues that they care about. His career as a Justice has not turned out that way, in any significant respect.
Just this week, for example, he mounted a sturdy defense during oral argument of Congress’ authority to continue rigorous federal enforcement techniques to assure minorities their right to vote, even as his conservative colleagues were expressing deep doubt about the constitutionality of the law at issue — the Voting Rights Act of 1965.
He has often sparred verbally, on the bench, with Justice Antonin Scalia, the philosophical leader of the Court’s conservative bloc. And he has often aligned himself closely with the Court’s most liberal member, Justice John Paul Stevens.
During oral argument, he displays a keen perception of the core issues before the Court, displaying a refined intellect along with a lawyer’s tenacity to keep an advocate from straying far from what is at stake. In some recent terms, he has seemed increasingly testy during oral argument, but that tendency appears to have eased somewhat in the current Term.
With word of Souter’s decision to retire, speculation in Washington will immediately begin to focus on the prospect that President Obama will make a symbolic appointment for that seat on the bench — perhaps the Court’s first Hispanic member, another woman Justice, or another African-American Justice.
The new President has had no time to make a record on the type of selections he will make for federal judgeships. He will be under particular pressure from his liberal followers to pick someone at least as liberal as Souter.
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