Now that various reports have confirmed that Justice David Souter plans to retire from the Supreme Court at the end of this term, the question becomes not just who does President Barack Obama pick but how is that likely to go?
Our political Quote of the Day addresses that question in this chuck of The Atlantic’s Marc Ambinder’s post:
Let’s face facts: there are many qualified center-left jurists who are women. Obama will be under enormous pressure to name a woman to replace Mr. Souter, especially given the illness of Justice Ruth Bader Ginsberg. Justice John Paul Stevens is 89.
Somewhat opaquely, Obama, a constitutional law lecturer, has said that the single most important qualification his appointments must possess is empathy for those who are less fortunate. In September, Obama told an audience that he is “committed to appointing judges who understand how law operates in our daily lives, judges who will uphold the values at the core of our Constitution.”
So what does this mean? Aminder again:
So would Obama appoint an academic? A long-time bench-sitter? Someone with a mixture of experience?
The new associate justice will probably be called upon to decide the constitutionality of Bagram airbase detentions, the scope of the government’s authority to define a national security fact, perhaps the status of gay marriage — and much more.
His first judicial appointment may tell us about his newest decision: Obama nominated Indiana Supreme Court Chief Justice David Hamilton to the 7th circuit; the White House portrayed Hamilton as a jurist respected by Republicans and Democrats alike, although Republicans in Washington were skeptical.
If Obama appoints a thoroughgoing liberal, Republicans will give him the fight of his life — though he might, by the time of the vote, have 60 Democrats to avoid a filibuster. A more moderate pick would disappoint his liberal base. In reality, Obama can appoint anyone he wants.
And indeed. Presidents don’t have a whole lot of opportunities to appoint Supreme Court justices, so will his choice tell us something fundamental about Barack Obama? And if he picks someone who conservatives don’t like, is he willing to go to the mat for it even if it means facing a possible fillibuster?
Yet another question is the impact on the GOP. The GOP is already losing members as independents soar. Many independents are GOPers who have left the party faithful fold. Some don’t agree with the Republican’s rightward drift and identification with the talk radio political culture. If Obama picks a “reasonable” choice and the GOP fights him tooth and nail, will that be yet another blow to the GOP in getting support beyond its shrinking tent?
Writes Hot Air’s Allahpundit:
I wonder if he [Souter] saved this as some sort of “100 days” gift to The One or whether he waited until the Democrats were on the brink of a filibuster-proof majority, just to make extra sure the GOP was powerless to stop his replacement. Whichever it is, needless to say, we’re at Obama’s mercy. The pick will almost certainly be a woman — at 48, Elena Kagan is young and the frontrunner as Solicitor General although Sonia Sotomayor’s name has been kicked around too — but beyond that, the sky’s the limit. The only “good” news is that Souter was one of the most reliably liberal votes on the Court. Barry O would have to appoint an out-and-out socialist, practically, to tilt it further left.
… Souter was like that movie character who shows up an enigma (thank you, George H.W. Bush) but turns out to be a pretty good guy by the final reel. It’s ironic this happens the same week that Specter switches parties — talk about the end of the road for moderate Northeastern GOPers!
For Obama, it’s a chance to try on some cosmetics. What do I mean by that? He’s going to replace a Republican dude who turned out to be a liberal with a Democratic female who we’ll know is a liberal. So the court will look different, but in terms of the law, nothing changes. Ironically, Obama could leave a huge stamp on the court, with two or three appointments in just the current term, without changing the ideology of the Supremes at all, because it’s the liberal wing with more age and health issues.
Joe Gandelman is a former fulltime journalist who freelanced in India, Spain, Bangladesh and Cypress writing for publications such as the Christian Science Monitor and Newsweek. He also did radio reports from Madrid for NPR’s All Things Considered. He has worked on two U.S. newspapers and quit the news biz in 1990 to go into entertainment. He also has written for The Week and several online publications, did a column for Cagle Cartoons Syndicate and has appeared on CNN.