Obama Vows ‘Independent’ Replacement for Souter
By DAVID STOUT and ADAM NAGOURNEY
New York Times
May 2, 2009
WASHINGTON — Justice David H. Souter formally told the White House on Friday that he will retire from the Supreme Court at the end of the current term in June, a development that stirred intense interest about who his replacement will be and how the change will affect future court rulings on abortion and the balance between personal liberty and national security.
President Obama praised Justice Souter and his record on the court, and said he hoped to have a new justice confirmed by the Senate by the time the court reconvenes in October. But before that happens, a vigorous debate in the Senate is virtually certain as lawmakers and the nominee discuss what kind of America they envision.
Promising to nominate a replacement with “a sharp and independent mind and a record of excellence and integrity,” Mr. Obama, who startled reporters by walking to the lectern for a cameo appearance in the middle of the daily White House press briefing, said that he would look for a candidate “who understands that justice isn’t about some abstract legal theory or footnote in a case book.”
“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,” Mr. Obama said.
He took no questions, and offered no clue about the choice of a new justice, always one of a president’s most lasting decisions. But even before Justice Souter’s letter was delivered to President Obama in mid-afternoon, the speculation about a successor was rampant, with much of the attention focused on women or minority candidates.
The president praised Justice Souter as someone who “has shown what it means to be a fair-minded and independent judge.”
Mr. Obama and some close aides and friends are known to have been thinking for months that he would soon face the need to fill a vacancy on the court. The White House Counsel’s office prepared privately to step up its efforts to search for a replacement on Friday.
Lawyers and legal scholars said on Friday that while Mr. Obama may choose a white man for a later vacancy, he would probably not do so in his first opportunity to shape the court. Names of prominent women and minority jurists, on the other hand, were widely discussed as likely candidates.
At 69, Justice Souter is two decades younger than Justice John Paul Stevens, and there have been no rumors that Justice Souter has serious health problems. But he is known to like his home state much better than he does Washington, which President Obama alluded to when he wished him “safe travels on his journey back to his beloved New Hampshire.”
The immediate reaction to Justice Souter’s impending departure demonstrated how polarizing the issue of abortion continues to be; the fundamental debate over constitutional rights and whether they have been eroded in recent years and, at least implicitly, whether the next justice should be someone other than a white man from a privileged background.
“Justice Souter has been a consistent supporter of abortion rights,” Nancy Northup, president of the Center for Reproductive Rights said in a statement. “His departure provides a critical opportunity for the president to nominate someone who has a strong understanding of and voice on the realities of women’s lives and to deliver on his stated commitment to nominate justices with ‘empathy,’ who understand the real life experiences of people.”
The Alliance for Justice issued a statement praising Justice Souter “for his commitment to public service and the rule of law.” His replacement should be “a highly qualified nominee who will uphold our Constitution and the law to provide equal justice and protect personal freedoms for everyone in America, not just a few at the top,” the organization said.
“Recent appointees to the Supreme Court are aggressively and systematically undermining the Constitution,” the alliance said. That was an unsubtle allusion to Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., who were picked by former President George W. Bush. (As a senator, Mr. Obama voted against the nominations of both candidates.)
President Obama will surely be under pressure from some quarters to nominate a woman, which would delight Justice Ruth Bader Ginsburg, who has made no secret of her disappointment that a woman was not named to succeed Justice Sandra Day O’Connor. If he feels it necessary to put someone with “real world” experience on a court now heavy with former appellate judges, President Obama may turn to someone with political, rather than judicial, experience — or someone who has both. A dozen or more names were floated as possible candidates on Friday, including black women, and some had appealing, up-from-the-bootstraps personal histories.
A portent of what may come in the Senate was offered by Michael Steele, the Republican National Committee chairman. After asserting that President Obama and Congressional Democrats are “pushing our nation further and faster to the left than voters bargained for,” Mr. Steele said the President should pick someone whose views are in line with “mainstream America” rather than try to impose a liberal agenda or give “political payback to the far left.”
The coming vacancy will be a Democratic president’s first chance to fill a high court seat since President Bill Clinton named Justice Stephen G. Breyer in 1994. President Bush’s nominations of Chief Justice Roberts and Justice Alito were in line with the president’s pledge to name justices who would interpret the law, rather than try to make new law — code language for conservative jurists, to the extent that labels are reliable.
Now, President Obama has a strong Democratic majority in the Senate, and he has a chance not to change the ideological makeup of the court at this point but, at least, to keep it from becoming more conservative.
As for labels, Justice Souter is a reminder that they are not always dependable. After being nominated by the first President Bush in 1990, he proved to be far more centrist, even liberal, in his judicial philosophy than the president and his supporters had expected. Nor was he the first Supreme Court justice to disappoint the president who put him on the court; President Dwight D. Eisenhower was said to have considered Chief Justice Earl Warren too liberal for comfort.
The coming showdown may test President Obama’s success at skirting divisive social issues, with conservative groups saying they view the vacancy as an opportunity to regroup after a series of political setbacks.
Senator Patrick J. Leahy, the Vermont Democrat who heads the Senate Judiciary Committee, said in an interview that he had told Mr. Obama he wanted to sit down with the president and ranking Republicans and Democrats to discuss potential nominees. The President said on Friday that he would consult with members of both parties.
Asked if he expected a reprise of contentious nomination battles, Mr. Obama replied: “I would hope not. But lately they have always seemed to be.”
Senior White House officials said they had been aware for weeks that Justice Souter intended to step down at the end of the term. As a result, they said, they had begun some preliminary vetting of potential candidates as is standard operating procedure in the White House, though the effort had been complicated by the distraction of having to vet hundreds of nominations Mr. Obama has made in forming his new government.
For Mr. Obama, the nomination will test his ability to bridge ideological divides on social issues like abortion. It should also provide a greater portrait of what Mr. Obama is looking for in a judge, both ideologically and in terms of experience.
“President Obama ran as a moderate, not as an extremist: now the spotlight is on,” said Kelly Shackelford, chief counsel of Liberty Legal Institute, a conservative policy advocacy group. “If he picks a liberal activist judge instead of a moderate, the American people will know it, and they won’t like it.”
Asked whether the nomination would provide a greater insight into Mr. Obama’s judicial leanings, Mr. Leahy responded: “I can answer that better after he makes his nomination.”
A coalition of conservative legal activist groups that worked together to support President Bush’s nominees has been preparing to confront an Obama administration nominee for several months, according to Curt Levey, the executive director of the Committee for Justice, one of the groups.
The groups agreed to divide up responsibilities for researching potential nominees and have completed about 30 dossiers, he said. They broke potential nominees into tiers of more and less likely female picks, putting all potential male nominees into a lower-priority category because of widespread expectations that Mr. Obama’s first pick will be female.
About a dozen activists came together recently for an all-day meeting over box lunches to go over the reports and debate the approach they would use to challenge potential nominees, which included some heated internal debates over which possible picks would be deemed “mainstream liberals” versus “fringe extremist.”
Mr. Levey said that they fully expect that whomever Mr. Obama nominates will support a constitutional right to abortion. For that reason, he said, they are focusing on “the issues that are really in play,” such as gay marriage, gun rights, religious rights, and the death penalty.
As a former Constitutional law professor, Mr. Obama is well acquainted with many prospective candidates for the court, particularly women. But he has told advisers that he would not limit himself to a preset list.
On Capitol Hill, both parties were quickly staking out their strategies, unsure of how they would squeeze a Supreme Court nominating process into an already crowded legislative calendar. Republicans, weakened by the defection of Senator Arlen Specter of Pennsylvania, pledged to unify for the impending court fight.
Peter Baker, Jeff Zeleny, Jim Rutenberg Neil A. Lewis and Doug Mills contributed reporting.
Copyright 2009 The New York Times Company
Story link |
