David Souter has told friends for years he wanted nothing more than to leave the Supreme Court and return to his native New Hampshire, where he could sit by the fire in his drafty cabin and read his beloved books. He hated Washington, he said, and found the Court’s work akin, he joked recently, to getting an “intellectual lobotomy.”
In recent weeks, it was starting to look like this term, after all his years of teasing, could finally be the one he made good on his word. The clues were piling up. He hadn’t hired law clerks for the upcoming term, even though they would need to report for duty in the late summer. And even though he typically hires his clerks late in the game, he hadn’t reached out to former clerks teaching in the nation’s top law schools for references or recommendations.
But when Nina Totenberg reported tonight that Souter was retiring this summer, the eccentric and unpredictable justice still somehow managed to surprise. Coming just a day after the Court’s last arguments of the term, we learned Souter would pull the trigger now, instead of waiting until the end of June, when opinions are finished and the Court adjourns for the summer. The news caught some of his colleagues on the Court by surprise. At least one learned of the news through media reports. Typically, it's the kind of thing a Justice would share with his colleagues during one of their private conferences. The next conference is scheduled to take place tomorrow.
We don’t know what factored into his decision, beyond his well-documented distaste for the town and the job. We don’t know, for example, whether he anticipates a retirement in the next couple of years by Justice Ruth Bader Ginsburg—and therefore he decided to go now and avoid the prospect of two vacancies in one term.
That’s what Justice O’Connor did in 2005, when an ailing Chief Justice Rehnquist told her he wanted to serve another year. Hoping to avoid two vacancies the following year, she decided to go ahead and retire, shocking Washington and the entire legal world.
We do know this: Souter’s early decision gives the Obama Administration plenty of time to find a replacement, and it’s unlikely the next justice will be a white man.
Several women top the list, including the highly regarded Chicago-based federal appeals court Judge Diane Wood, Solicitor General Elena Kagan, New York-based federal appeals Sonia Sotomayor, and Stanford Law School professor Pam Karlan. Another intriguing prospect—outside the judicial monastery and the rarefied world of academia—is Michigan Gov. Jennifer Granholm.
But while Obama can put his mark on the Court, none of those nominees would change the Court. Souter, nominated by Republican George H.W. Bush, was a reliable liberal vote. His opinions over the past 19 years infuriated conservatives, who considered his nomination one of the biggest presidential blunders in modern history.
Now, Souter has given President Obama the opportunity to keep alive his liberal voting record for another generation---and the opportunity for the new President to create a legacy that last long after he leaves the White House.
Obama is certain to make the most of it. With a solid majority in the Senate, he can get a solid liberal confirmed. And it seems almost inconceivable that Obama will make the same kind of miscalculation George H.W. Bush did in 1990, when he tapped Souter to replace liberal icon Willian Brennan and turn the Court to the Right.