By DAVID STOUT
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.
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 for whom the law was not a matter of abstract theory, but a force that affects real people in their daily lives.
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. Reports of Justice Souter’s deccision to retire first emerged Thursday evening on National Public Radio.
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 of New Hampshire much better than he does Washington.
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.
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. He may feel the need to select a member of a minority group.
And if he feels it necessary to put someone with “real world” experience on a court now heavy with former appellate judges, he 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.
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 provided to be far more centrist, even liberal, in his judicial philosophy than the president and his supporters had expected.
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Peter Baker, Jeff Zeleny, Jim Rutenberg, Adam Nagourney, Neil Lewis and Doug Mills contributed reporting.
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