Obama Likely to Pick Woman to Replace Souter

Supreme Court Justice David Souter, who has reportedly informed the White House that he plans to retire, is a relative youngster in high court terms.

Five of the current justices are older than the appointee of former President George Bush who turned out to be more liberal on a number of issues than the appointees of former President Bill Clinton. So, at 69, Souter could easily be looking forward to another two decades on the bench. (After all, Justice John Paul Stevens, another Republican appointee gone liberal, is 89 and going strong; most court watchers think Stevens is aiming to surpass the record of Oliver Wendell Holmes Jr., who retired -- just shy of age 91 -- as the oldest justice in the high court's history.)

But Souter has been quietly telling his circle of friends and legal compatriots – the former attorneys general who he got to know when he served as New Hampshire's chief law enforcement officer – that he wants to retire. Though fit and energetic, Souter has never made any secret of his distaste for Washington and his long-term desire to return to his native New England.

Now, Souter appears to have formalized an exit strategy, as reports circulate that he has informed the White House of his intention to retire at the end of the court's current term.

If Souter follows through on the plan, President Obama will be making a court appointment that, while it is unlikely to alter the court's ideological balance, could bring needed diversity to the bench.

The early line holds that Obama will pick a woman to sit with the court's lone female justice, Ruth Bader Ginsburg, an ailing member of the court's more liberal wing.

Frontrunners?

Solicitor General Elena Kagan, who has already been appointed to a top position by Obama. She was Kagan was confirmed by the U.S. Senate on March 19, 2009 by a vote of 61 to 31, after conservatives objected to the former Harvard Law School dean's positions on a number of issues.

2nd Circuit U.S. Court of Appeals Judge Sonia Sotomayor, who if nominated and confirmed would be the first Hispanic justice. A centrist who was first nominated to the federal bench by President George H.W. Bush and then nominated to the U.S. Court of Appeals by President Bill Clinton, she was criticized by some conservatives as a "judicial activist." But the 1998 approval of her appeals court appointment came on a 68-28 vote, with broad Republican support.

Federal Judge Diane Wood, who once taught at the University of Chicago with a young constitutional law professor named Barack Obama. His 1995 appointment by Clinton won unanimous approval from the Senate, even though the former clerk for Supreme Court Associate Justice Harry Blackmun has taken hits from social conservative groups for her "strongly pro-abortion" views.

There are, of course, more prospective candidates who could be considered serious contenders, including state Supreme Court justices such as Chief Justice Leah Ward Sears, North Carolina Associate Justice Patricia Timmons-Goodson and Wisconsin Associate Justice Ann Walsh Bradley.

Associated Press surveyed court watchers and came up with a longer list of prospects that, in addition to some of the names mentioned above, includes:

* Judge Ruben Castillo of the U.S. District Court for the Northern District of Illinois.

* Judge Merrick B. Garland of the U.S. Court of Appeals for the District of Columbia Circuit.

* Governor Jennifer Granholm of Michigan.

* Pam Karlan, a professor at Stanford Law School.

* Harold Koh, a Yale University law professor who was recently nominated to serve as legal adviser at the State Department.

* Judge Margaret McKeown of the 9th U.S. Circuit Court of Appeals in San Francisco.

* Governor Deval Patrick of Massachusetts.

* Judge Johnnie Rawlinson of the 9th U.S. Circuit Court of Appeals in San Francisco.

* Kathleen Sullivan, former dean of Stanford Law School.

* Cass Sunstein, a Harvard University law professor who was recently nominated to head the White House Office of Information and Regulatory Affairs.

* Judge Kim McLane Wardlaw of the 9th U.S. Circuit Court of Appeals in San Francisco.

Melissa Harris-Lacewellsuggests UCLA law professor Kimberle Crenshaw, whose writings on race and gender influenced the drafting of the equality clause in the South African Constitution.

For even more potential nominees, check out the extensive Barack Obama Supreme Court Candidates site.

No matter who the president picks, the chances that his nominee will be confirmed are better now that Pennsylvania Senator Arlen Specter has switched from the Republican caucus to the Democratic caucus.

Specter's moves a veteran member of the Judiciary Committee into the majority-party camp -- although it should be noted that Specter's committee assignments could shift. If and when Minnesota Democratic Farmer Labor Party candidate Al Franken is finally seated, Democrats will have the 60 votes they need to advance a nomination without having to contend with a Republican filibuster.

The one complexity that conservatives have highlighted involves the fact that the Senate Judiciary Committee operates under an arcane set of internal rules, including one that usually requires the consent of a minority party member to advance a controversial nomination. Specter was the Republican most likely to assist the Democrats in such a circumstance.

But it is worth noting that Utah Senator Orrin Hatch, the ranking Republican on the committee, oversaw the confirmations of both Sotomayor and Wood when he served in the 1990s as chairman of the Judiciary Committee. In the case of Sotomayor, Hatch broke with more conservative Republicans to back her nomination to the appeals court.

Comments (47)

1. Do you ever sleep, Mr. Nichols?

   Posted by Benchrest at 04/30/2009 @ 11:28pm

2. Thank You Justice Souter for holding off until BO became President. Thank goodness.

   Posted by OneVote at 04/30/2009 @ 11:44pm

3. One note so we can get a little closer to a post-racial society--if you list the race and/or ethnicity of one person, do it with the rest of them.

   You spotlighted 2 white women and 1 latina, then listed 2 black women and a white woman. Better diversity than i had assumed, but without more detail we have to do our own research.

   and let me add one more--Kimberle Crenshaw.

   Posted by ludovicspeaks at 05/01/2009 @ 12:19am

4. I think that the priority for the people in the left is not necessarily a person out of the minorities or a woman - though it might be quite nice if it is that way. Our priority is a person which will be extremely liberal, and I fear a bit that Obama sometimes to "balance the political issues" chooses to select 'half-way' people which in the end might have some non-progressive ideas.

   By the way, I would recommend retirement to the conservative judges, there is a life out of the court, believe me Mr. Scalia et al...for example writing books for posterity.

   Posted by Frank42 at 05/01/2009 @ 01:22am

5. By the way, I would recommend retirement to the conservative judges, there is a life out of the court, believe me Mr. Scalia et al...for example writing books for posterity.

   Posted by Frank42 at 05/01/2009 @ 01:22am

   the conservative justices will stay on, if only to try and slow a leftist court from completely dismantling the constitution.

   G-d help us if we ever get another "Warren" court and you have more Breyers and Ginsburgs who look not to the constitution, but Europe for guidance.

   Posted by antisocialist at 05/01/2009 @ 01:31am

6. Crenshaw would brighten things up considerably.

   Posted by sloper at 05/01/2009 @ 03:12am

7. Another helping added to the plate of BO. Not to worry. Our president can handle this.

   Posted by jackfoster at 05/01/2009 @ 06:44am

8. You can always count on the current generation to instantly start speculating on the race or gender of a new surprise candidate FIRST and the qualifications second, and to pass judgement if these things are not considered, or perhaps considered "incorrectly."

   Posted by PRESTERJOHNofASIA at 05/01/2009 @ 07:02am

9. And if Obama did pick a woman,or a black, almost no one of the vast majority of average common sense thinking types would have a problem with it, because, if the candidate were qualified, they would have no reason to.

   But DON"T pick a member of those two groups, and the libs would be having orgasmism over it. "RACIST" SEXIST'" "OUT OF TOUCH" "Primitive Thinker" and on and on ad naseum.

   Funny

   Posted by PRESTERJOHNofASIA at 05/01/2009 @ 07:08am

10. Posted by antisocialist at 05/01/2009 @ 01:31am

    > the conservative justices will stay on, if only to try and slow a leftist court from completely dismantling the constitution.

    ROTFL. Without question, the absolute closest to that cliff the SCOTUS has come in modern days came in DECEMBER 2000. They decided to toss out the vote of the electoraye in a PRESIDENTIAL election and choose the (pre-anointed) leader themselves ("leader", NOT "President"; he was neither, of course).

    What flavor Kool-Aid you drinking today?

    Posted by grndrush at 05/01/2009 @ 07:52am

11. Posted by PRESTERJOHNofASIA at 05/01/2009

    > But DON"T pick a member of those two groups, and the libs would be having orgasmism over it.

    Hmmm...I'm so liberal I live in Canada (and support the NDP locally, at that), and wouldn't have the slightest problem with an old white guy - as long as he was qualified, and a true "liberal" in the classic small-l sense of the term.

    Elizabeth Dole, I'd have a HUGE problem with, and I'm originally from Tennessee.

    Posted by grndrush at 05/01/2009 @ 07:59am

12. Well then I repsctfully withdraw my statement where you are concerned. :)

    I don't know how I'd feel about a Dole. Better than a Ginsberg, I have to say. She's a little too liberal for me.

    Have a good day

    Posted by PRESTERJOHNofASIA at 05/01/2009 @ 08:04am

13. My prediction is ...

    Obama won't pick anybody on John Nichols' list.

    (Less my clairvoyance than HIS track record...heheh)

    Posted by Mask at 05/01/2009 @ 08:22am

14. Posted by antisocialist at 05/01/2009 @ 01:31am

    A more "liberal" court might actually restore habeas corpus to prevent indefinite detention without charges and strike down the truly odious Patriot Act for starters, to protect us from the government you so seem to fear.

    Obama seems to be aiming for the center anyway, as seems to be his overall intent, as a way of stabilizing a government gone completely off the rails during the bush years.

    Posted by kennyboy at 05/01/2009 @ 08:39am

15. (Less my clairvoyance than HIS track record...heheh)

    Posted by Mask at 05/01/2009 @ 08:22am | ignore this person | warn this person

    yup...

    (no aspersion intended toward mr. nichols)

    Posted by ibbleblibble at 05/01/2009 @ 08:45am

16. Nichols has changed subjects, just like his Demoncrats have forgotten about "torture" now that they are found to be complicent. We will see no retractions~

    "In a rare gesture, House intelligence committee Chairman Silvestre Reyes sent a letter this week to all CIA employees suggesting that Congress shared some blame for the CIA interrogation controversy and should play a more robust role in the intelligence policymaking process.

    The letter, which was sent Wednesday and made available to The Washington Times on Thursday, appeared to undercut House Speaker Nancy Pelosi's remark that there was little Congress could do about harsh interrogations, including waterboarding. The Times reported last month that members of Congress, including Pelosi, D-Calif., had been briefed on numerous occasions about the interrogation program for high-value detainees.

    "One important lesson to me from the CIA's interrogation operations involves congressional oversight," wrote Reyes, D-Texas. "I'm going to examine closely ways in which we can change the law to make our own oversight of CIA more meaningful; I want to move from mere notification to real discussion. Good oversight can lead to a partnership, and that's what I am looking to bring about."

    The letter seeks both to excuse Democrats who were briefed after Sept. 11, 2001, about interrogation techniques such as waterboarding and at the same time suggests that members of Congress cleared to receive highly classified material have a responsibility in the future to let their criticisms be known."

    Leftist are FOOLS when it comes to policy matters as usual!!!!

    Posted by comancheamerican at 05/01/2009 @ 09:46am

17. "You can always count on the current generation to instantly start speculating on the race or gender of a new surprise candidate FIRST and the qualifications second"

    the "current generation" being.........john nichols?

    i think you can always count on the teeming masses of mindless bloggers to make outrageous sweeping claims, without any concrete, specific evidence to support them

    but here's another great quote, courtesy of comanche:

    "Nichols has changed subjects, just like his Demoncrats have forgotten about "torture" now that they are found to be complicent"

    apparently comanche supports prosecutions of "those who were briefed on the program," but not prosecutions for the very ones who authorized and carried out the program.

    and "leftists" are the fools, not comanche. comanche is a level-headed, intellectual powerhouse.

    Posted by darladoon at 05/01/2009 @ 10:33am

18. and, can we all just keep in mind that OBAMA WON THE ELECTION. he can nominate whomever he wants for souter's seat. and it would make perfect sense to replace souter with a liberal if you are in obama's position. obviously a qualified WOMAN makes perfect sense, as the bench is missing one.

    Posted by darladoon at 05/01/2009 @ 10:37am

19. But DON"T pick a member of those two groups, and the libs would be having orgasmism over it. "RACIST" SEXIST'" "OUT OF TOUCH" "Primitive Thinker" and on and on ad naseum.

    Funny

    Posted by PRESTERJOHNofASIA at 05/01/2009 @ 07:08am

    Yeah, Funny. Liberals did not like the appointment of Roberts, but it had little to do with his masculine whiteness. I think your a bit out of touch.

    Posted by Extraneous at 05/01/2009 @ 10:56am

20. "The Times reported last month ..."---Posted by comancheamerican at 05/01/2009 @ 09:46am

    More plagiarism, RIO? You think we aren't figuring out where YOU start (and finish) and somebody else begins???

    Posted by Mask at 05/01/2009 @ 10:56am

21. Only in America would the gender of a nominee be the first and most important consideration for a national high court judge.

    Posted by syfriendly at 05/01/2009 @ 11:02am

22. "Only in America would the gender of a nominee be the first and most important consideration for a national high court judge"

    only in america? uh, not sure you've spent much time in the vast majority of countries on earth where women are barred from public office. that's point one.

    point two: gender is a consideration, to be sure, why wouldn't it be?

    point three: there are only two genders (i don't think there are any inter-sex or trans-sex judges out there) cannot obama select a woman, simply because THERE ARE NO WOMEN ON THE BENCH?

    what if there were all women on the bench, and no men, and obama thought of nominating a man? got problems with that?

    Posted by darladoon at 05/01/2009 @ 11:09am

23. one would by lying through one's teeth if one claimed that the gender/sex of the incoming justice is irrelevant.

    Posted by darladoon at 05/01/2009 @ 11:10am

24. simply because THERE ARE NO WOMEN ON THE BENCH? what if there were all women on the bench, and no men, and obama thought of nominating a man? got problems with that? Posted by darladoon at 05/01/2009 @ 11:09am | ignore this person | warn this person

    Darla, what do you call judge Ginsburg? a man?

    Posted by emile duBois at 05/01/2009 @ 11:49am

25. one would by lying through one's teeth if one claimed that the gender/sex of the incoming justice is irrelevant.

    Posted by darladoon at 05/01/2009 @ 11:10am

    Why is it relevent? Or, why is it more relevent then qualificiation?

    Posted by Darin_the_Big_Fat_Troll at 05/01/2009 @ 11:58am

26. You miss the point EXTRANEOUS. No self respecting Liberal would have wanted Roberts to win, but they would have expected his choice by a Bush. I'm talking about a "Liberal" President expected by his own party to pick the "correct candidate" and what the result would be if he didn'tdoesn't.

    I wouldn't level accusations of being out of touch until you can at least read the post correctly, old boy.

    Posted by PRESTERJOHNofASIA at 05/01/2009 @ 11:58am

27. Ginsburg a man?

    Nawwwwwwww! Really :)

    Posted by PRESTERJOHNofASIA at 05/01/2009 @ 12:00pm

28. This is brilliant by Kim Strassel of WSJ

    http://online.wsj.com/article/SB124113372096875105.html

    ***************************************************************

    Purely from a tactical standpoint, Mr. Specter's move matters deeply. The Democrats are a gnat's breath away from a filibuster-proof majority...

    Purely from a philosophical standpoint, Mr. Specter's move means nothing, because he didn't leave his party on philosophical grounds. As even the good senator acknowledged in his press conference, his top priority is, and always has been, staying in office...

    When Joe Lieberman broke with his party on Iraq, or John McCain with his on global warming, or when Daniel Patrick Moynihan stood for Social Security reform, they were able to clearly articulate what it was about their political beliefs that led them to those positions. They also took their positions at some political risk. When Ms. Collins positions herself as a deficit hawk, even as she votes for every spending bill in sight -- often with a pure eye for re-election -- and then scolds her colleagues for not being more accepting of her "centrism," well, the party tends to get a bit cranky.

    Posted by Darin_the_Big_Fat_Troll at 05/01/2009 @ 12:01pm

29. dear darladoofus, why not look at the person's qualifications FIRST, and then the gender? Frankly, if you look at the qualifications, then you don't have worry about a "gender quota". besides, there already is a woman on the court. but there are no illegal aliens on the court either so let's be sure we get one on so that they are represented also. What about an al-queda justice. and a chinese communist, and certainly BHO's new friends in Cuba and Venezueal need to be rep'd. let's get a left-wing dictator on there .... oh, but then BHO would have to resign as president.

    Posted by njpro at 05/01/2009 @ 12:02pm

30. Oops. wrong thread. Sorry

    Posted by Darin_the_Big_Fat_Troll at 05/01/2009 @ 12:02pm

31. Posted by njpro at 05/01/2009 @ 12:02pm | ignore this person | warn this person

    this is reductio ad absurdum, and plain dumb too.

    Posted by emile duBois at 05/01/2009 @ 12:05pm

32. Posted by Darin_the_Big_Fat_Troll at 05/01/2009 @ 12:02pm

    Sort of late and irrelevant whichever thread you put it on, really.

    Posted by Mask at 05/01/2009 @ 12:05pm

33. Choosing "gender" first, was like Americans use "charisma" as a qualification for choosing a president, and you can see where that brought us. Harriet Myers was a woman, ergo choose her.What about Hispanic? Gonzalez is one. Race? Thomas was a grand choice indeed.The ONLY index is qualification, end of story.

    Posted by mystic at 05/01/2009 @ 12:16pm

34. emile,

    oops, forgot about ginsburg, while also keeping in mind that her time is almost up (hence i think the reason for needing another female on the bench).

    "Or, why is it more relevent then qualificiation?"

    never claimed it was "more" relevant than qualifications. just that it is, indeed, a relevant factor.

    "besides, there already is a woman on the court. "

    yeah, and EIGHT men.

    Posted by darladoon at 05/01/2009 @ 12:21pm

35. to all of the morons harping on and on about putting gender OVER qualifications. could you please STFU?

    nobody is suggesting we scrap qualifications and only worry about gender. there are PLENTY of qualified people to judge. the point is, gender, and specifically the fairer sex, is a key factor.

    Posted by darladoon at 05/01/2009 @ 12:23pm

36. While I have my disagreements with Obama, I trust him on Constitutional questions, the Rule of Law, and Civil Rights. It wouldn't hurt if it was a woman who was young enough to serve a number of years on the court. Women are under represented there. His wife might be a good selection, if she wasn't his wife.

    Posted by pjcasey at 05/01/2009 @ 12:23pm

37. "Though fit and energetic, Souter has never made any secret of his distaste for Washington..." That appears to be directly related to the politicization of the Supremem Court 2000 decision. Everyone wanted "their man" on the right or left respectively except Souter who dissented bitterly that this was a state decision, and he was correct, the only sane and impartial voice!! He will be sorely missed.

    Posted by mystic at 05/01/2009 @ 12:24pm

38. "the point is, gender, and specifically the fairer sex, is a key factor."---Posted by darladoon at 05/01/2009 @ 12:23pm

    Why, exactly?

    (Not starting a fight, just want to know your thinking on that)

    Posted by Mask at 05/01/2009 @ 12:48pm

39. Sort of late and irrelevant whichever thread you put it on, really.

    Posted by Mask at 05/01/2009 @ 12:05pm

    Okay then when are we going to return to healthcare. I read something today that is devastating to the calls for greater control by the federal governemtn to fix our healthcare. *********************************************************

    http://www.realclearpolitics.com/articles /2009/05/01/global_diagnosis_americas_ health_care_policies_are_sick_96191.html

    So, what countries seem to be handling healthcare most effectively and efficiently? Well, there's one nation that has the lowest infant mortality rate in the world as well as the third longest average lifespan for its citizens - and it spends only 3.7 percent of its GDP on healthcare. That country is Singapore.

    Singapore has a very unique system that requires the individual to be responsible for his or her own health; even more importantly, it makes people responsible for managing the spending associated with their medical care.

    Singaporeans participate in a mandatory savings program that sets up a "Medisave" account for each individual. The individual is required to pay a small percentage of his or her income each month into that account, and employers also make a contribution. For individuals who are unemployed, there is a government subsidy. Singaporeans also engage in a "Medishield" program, which is a national catastrophic illness insurance plan. Premiums for the Medishield program are small, because it is government subsidized; as a result, the premiums are paid for out of an individual's Medisave account.

    Posted by Darin_the_Big_Fat_Troll at 05/01/2009 @ 12:55pm

40. That's exactly the system I've been advocating: A legal requirement to purchase individual coverage, with a government subsidy for those who can't afford it.

    Posted by Darin_the_Big_Fat_Troll at 05/01/2009 @ 12:56pm

41. Posted by mystic at 05/01/2009 @ 12:16pm | ignore this person | warn this person

    these folks are all creeps, or worse, and have been exposed as such, and are justly reviled.

    the qualifications noise is a red herring. by presidential fiat, they are qualified. when Ginsburg retires, she should also be replaced with a woman. (Hillary?)

    Posted by emile duBois at 05/01/2009 @ 1:00pm

42. "(Singapore) makes people responsible for managing the spending associated with their medical care" (Darin_the_Big_Fat_Troll) (love that name Darin!!)

    I find your facts about Singapore most illuminating. I've been to Singapore and utterly fell in love with the place. The system works!! (It is a benevolent dictatorship whose PM wears short sleeve shirts and lives in a normal house like everyone else).It's probably a rather sterile boring place to many Americans. The point you make that each person is emboldened with responsibility is enhanced by making it mandatory that each person owns his own home, and receives loans to make that happen. As such, everyone takes pride and care in his or her home, so that poverty appears to be addressed.I saw "projects" where exquisite flowers and shrubs grew on every balcony!! No system is perfect on earth, but compare this to the living hell in Palestine.

    Posted by mystic at 05/01/2009 @ 1:29pm

43. mask, i think reasonable people can agree that there is no such thing as a "strict interpretation" of constitutional law. there are ONLY interpretations of the law. to say a judge only gives "strict intepretations" of the law means "i agree with him or her."

    Posted by darladoon at 05/01/2009 @ 1:32pm

44. are women and men different? yes. do women see things differently than men? yes. is a woman more likely to understand, say, pregnancy than a man? yes. is a woman more likely to understand what it's like to work for less money than a man, even though she performs exactly the same work? yes.

    do we even need to go into why women on the bench might make broader and more inclusive interpretations of the law?

    race and class are also important factors, but obviously, gender is the most obvious.

    Posted by darladoon at 05/01/2009 @ 1:36pm

45. mask, i think reasonable people can agree that there is no such thing as a "strict interpretation" of constitutional law. there are ONLY interpretations of the law. to say a judge only gives "strict intepretations" of the law means "i agree with him or her."

    Posted by darladoon at 05/01/2009 @ 1:32pm

    I have to disagree with you, Darla. A person who gives a strict interpretation of the law looks at the words and possibly collateral evidence from the time the law was written (such as the Federalist papers).

    There are other judges who would interpret our laws based on international law, or Penumbras, or personal feelings, "even though it says X, surely no rational person would have meant X. They must have meant Y."

    There are people who argue that the Constitution is a "living document", that is, the meaning of the words changes as society changes.

    To a strict constructionist the words, "the right of the people to keep and bear Arms, shall not be infringed." mean the exact same thing in 1800, 1900, 2000, 2100, 2200, etc.

    Posted by Darin_the_Big_Fat_Troll at 05/01/2009 @ 4:16pm

46. Female+ Black+ Hispanic+ Lesbian+ Dis-abled+ Veteran+Single-Mother+ Ex-welfare+ Ex substance abuser+ progressive judge is the minimum requirement that will not result in liberal/progressive disappointment.

    Posted by sntauri at 05/01/2009 @ 4:41pm

47. "To a strict constructionist the words, "the right of the people to keep and bear Arms, shall not be infringed." mean the exact same thing in 1800, 1900, 2000, 2100, 2200, etc."

    yes, and gun rights are still strong, but you have to understand that times change and new circumstances arise. one of these is the use of assault weapons in black and latino neighborhoods across the country.

    so the document must live, otherwise it dies.

    women's right to an abortion. 1973 was a landmark year for women's rights, the culmination of a long battle for women's equality.

    Posted by darladoon at 05/01/2009 @ 5:07pm