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Souter Leaving Supreme Court

May 1, 2009

The New York Times has the story of David Souter’s coming departure from the Supreme Court and the move’s significance to Obama’s ability to craft the court in his ideological image. Predicting a Supreme Court nominee’s eventual decision making is often a difficult endeavor. Souter himself was appointed by George H.W. Bush who thought he was putting a conservative on the court and, instead, Souter surprised everyone by becoming a reliably liberal to moderate voice on the Court. Obama’s challenge is particularly important because the court currently contains four of the most conservative jurists ever to sit on the court and two of them, Alito and Roberts, are young enough to have a reasonable chance to serve for 25 more years. If the vacancy is not filled by a more moderate voice, the Court will have a rock-solid, historically conservative five-vote majority for the next two decades, at least.

Some background to Souter’s time on the Court:

Justice Souter was confirmed as the 105th justice on Oct. 2, 1990. He replaced Justice William J. Brennan Jr., the court’s liberal leader, who abruptly retired on July 20, 1990, at age 84 after suffering a stroke.

The nominee was little known even in Washington legal circles when the president introduced him to the country. He was a 50-year-old Harvard Law School graduate and former Rhodes scholar who had been confirmed to a federal judgeship only two months earlier and had barely moved into his chambers at the federal appeals court in Boston. For 12 years before that, he had been a state judge in New Hampshire.

Mr. Souter became a favorite of liberals during his tenure and a source of enormous frustration to conservatives who believe he betrayed them.

During his confirmation hearing, Judge Souter said that he had no agenda on abortion and that he had not made a decision on how he would vote if the issue of Roe v. Wade was put before him.

A major abortion case, Planned Parenthood v. Casey, arrived at the court in his second term and was argued on April 22, 1992. It was widely expected that Roe would be formally or functionally overturned because by then another abortion rights supporter, Justice Thurgood Marshall, had retired, and he was replaced by Justice Clarence Thomas.

But the result was just the opposite. Justice Souter, joined by two other Republican-appointed justices, Sandra Day O’Connor and Anthony M. Kennedy, who had earlier both expressed strong doubts about Roe, collaborated to produce a highly unusual joint opinion that reaffirmed the constitutional right to abortion. With Justices Harry A. Blackmun and John Paul Stevens joining the central parts of the joint opinion, the vote was 5 to 4.

Justice Souter was in the minority, and a bitter dissenter, in the case of Bush v. Gore, the 5-to-4 decision that ended the disputed Florida recount in the 2000 presidential election and effectively declared George W. Bush the winner.

“There is no justification for denying the state the opportunity to try to count all disputed ballots now,” he wrote.

Senator Patrick J. Leahy, Democrat of Vermont and the chairman of the Senate Judiciary Committee, praised the justice on Thursday night. “Justice Souter is a first-rate legal talent,” Mr. Leahy said, “and I am very proud of him.”

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