With Souter Retiring, Obama Has Many Choices for First Supreme Court Pick

Justice David Souter's departure won't shift the court's balance, but Obama's pick will face scrutiny.


Supreme Court Justice David Souter never enjoyed living in the District of Columbia, where the humid, sticky summer air is so stifling that just drawing breath can be a chore. "The world's best job in the world's worst city," he once said. Even worse than the weather, Souter grew weary of the court's grinding pace. Two months ago, he hinted at his frustration, telling an audience that resuming work each term was a "sort of annual intellectual lobotomy."

Word leaked out last night that this summer in Washington would be the last for the 69-year-old jurist. The New Hampshire native plans to return to his home in the Granite State after 19 years of service on the nation's high court.

But Souter's departure is unlikely to shift the Supreme Court's ideological equilibrium. Despite being nominated by George H. W. Bush, Souter never became a reliable conservative jurist, much to the consternation of conservatives who said they felt betrayed by what they saw as his ideological shift on issues like abortion rights, eminent domain, and the limits of executive power. On those and many other issues, Souter found himself frequently siding with the court's other liberal-leaning justices, John Paul Stevens, Stephen Breyer, and Ruth Bader Ginsburg.

The White House is hardly unprepared to nominate a candidate to replace Souter. With several elderly justices on the bench, the topic has long been discussed. During the campaign, then candidate Barack Obama frequently talked about what he would look for in a Supreme Court nominee. Among the qualities he cited were a compelling life story and a capacity to empathize with the "less powerful" who come before the court.

There's also pressure on President Obama to diversify the face of the high court by tapping a Hispanic or a woman. Sandra Day O'Connor, the most recent justice to retire, was replaced by Samuel Alito.

The list of possible replacements for Souter includes numerous female jurists, including Solicitor General Elena Kagan, U.S. Appeals Court Judge Sonia Sotomayor, and Leah Ward Sears, the chief justice of Georgia's Supreme Court. Michigan Gov. Jennifer Granholm's name also has also been bandied about.

Of those possible candidates, Sotomayor, a woman of Puerto Rican decent who grew up in the housing projects of the South Bronx, may have the best résumé if diversifying the bench is the president's top concern. She also fulfills the president's wish for a compelling life story. First nominated to the federal bench by George H. W. Bush, she may also be an easier sell to GOP senators.

Several men are being mentioned as candidates as well, including renowned law professor Cass Sunstein and Chicago-based District Judge Ruben Castillo.

The news of Souter's intended departure comes on the heels of a development this week that could make the confirmation process easier for the president. Two days ago, Pennsylvania Sen. Arlen Specter abandoned the GOP, giving the Democrats 59 senators. They'll have a filibuster-proof 60 if Al Franken prevails in the contested Minnesota election.

It's been more than 15 years since a Democratic president has nominated a high court justice. And it might not be the only high court appointment that Obama makes during his first term in office. Justice Ginsburg, who is 75, was recently treated for pancreatic cancer, though she remains on the court. And Justice Stevens, the court's eldest jurist at 88 years old, is likely to step down before the next Inauguration Day in 2013.