On the morning of May 1st, National Public Radio’s Nina Totenberg piece on Justice David Souter corroborated earlier reporting that the 69 year old Justice plans to step down. Totenberg’s report includes names on the Obama administration short list to replace Souter are largely consistent with the early reporting from the New York Times, though with one more addition, Diane Wood.
Possible nominees who have been mentioned as being on a theoretical short list include Elena Kagan, the current solicitor general who represents the government before the Supreme Court; Sonia Sotomayor, a Hispanic judge on the U.S. Court of Appeals for the Second Circuit; and Diane Wood, a federal judge in Chicago who taught at the University of Chicago at the same time future President Barack Obama was teaching constitutional law there.
That same day the Washington Post ran a front page story noting the same three names on the President’s short list that Totenberg reported on, but other names too.
White House advisers have been drafting lists of potential replacements virtually since Obama took office, and the list is said to also include Stanford University law professor Kathleen M. Sullivan, Kim McLane Wardlaw of the U.S. Court of Appeals for the 9th Circuit, Michigan Gov. Jennifer M. Granholm and Georgia Supreme Court Chief Justice Leah Ward Sears. Souter, who has been on the court since October 1990, was nominated by President George H.W. Bush on July 25, 1990, to a seat vacated by William J. Brennan Jr. He was confirmed by the Senate on Oct. 2, 1990.
excellent overview of Souter’s tenure on the court and notes Souter does not have to stay on the Court any longer than when he he wants to leave.
SCOTUS blog provides an
Souter is not obliged by law to remain on the Court beyond any point that he chooses to depart. It has been commonplace, however, for most retiring Justices to serve until a successor is ready to take office. One member of the modern Court — Chief Justice Earl Warren — served a year longer than he had wanted, because his nominated successor, Justice Abe Fortas, ultimately withdrew amid controversy. Souter may not have wanted to risk a prolongation of service in Washington — a community and an environment that he has long found unappealing.
Sometime in the afternoon on May 1st, Souter submits a terse letter of resignation to the president.
Dear Mr. President:
When the Supreme Court rises for the summer recess this year, I intend to retire from regular active service as a Justice, under the provisions of 28 US.C. § 371(b)(l), having attained the age and met the service requirements of subsection(c) of that section. I mean to continue to render substantial judicial service as an Associate Justice.
That same afternoon President Barack Obama interrupts a White House press briefing to deliver a statement on Souter’s retirement and articulates the qualities he is looking for in a new justice. In his statement, President Obama thanked Souter for his years of public service and praised Souter his sense of compassion, integrity and independence while also noting he was not an ideologue.
Perhaps taking the time to highlight these qualities the one time University of Chicago Constitutional law professor is signaling what he is looking for in a Supreme Court nominee or at least how he would like that person to be portrayed in the press.
Looking ahead towards Souter’s replacement, the president said he wants a nominee that is not only “sharp and independent mind and a record of excellence and integrity,” but also one who possesses “empathy, of understanding and identifying with people’s hopes and struggles as an essential ingredient for arriving as just decisions and outcomes.”
As others have already noted, President Obama’s statement contained echoes of what he said as a candidate when he invoked the empathy standard whenever asked what kind of judges he wants to nominate to the federal bench.
The White House posted a transcript of the president’s remarks:
THE PRESIDENT: I just got off the telephone with Justice Souter. And so I would like to say a few words about his decision to retire from the Supreme Court.
Throughout his two decades on the Supreme Court, Justice Souter has shown what it means to be a fair-minded and independent judge. 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.
He approached judging as he approaches life, with a feverish work ethic and a good sense of humor, with integrity, equanimity and compassion — the hallmark of not just being a good judge, but of being a good person.
I am incredibly grateful for his dedicated service. I told him as much when we spoke. I spoke on behalf of the American people thanking him for his service. And I wish him safe travels on his journey home to his beloved New Hampshire and on the road ahead.
Now, the process of selecting someone to replace Justice Souter is among my most serious responsibilities as President. So I will seek somebody with a sharp and independent mind and a record of excellence and integrity. I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a case book. It is also about how our laws affect the daily realities of people’s lives — whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation.
I view that quality of empathy, of understanding and identifying with people’s hopes and struggles as an essential ingredient for arriving as just decisions and outcomes. 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. I will seek somebody who shares my respect for constitutional values on which this nation was founded, and who brings a thoughtful understanding of how to apply them in our time.
As I make this decision, I intend to consult with members of both parties across the political spectrum. And it is my hope that we can swear in our new Supreme Court Justice in time for him or her to be seated by the first Monday in October when the Court’s new term begins.