Litigation

Souter Retirement Reports Spark Media Outpouring

By Charlie Hall

Reports that Supreme Court Justice David Souter plans to retire has set off a media stampede focusing on two questions: Whom will President Obama choose as Souter’s replacement, and will the nomination battle be somewhat civil or outright ugly?

Initial reports Thursday night focused on Souter’s apparent decision-still unconfirmed-to retire at the end of this term. By midday Friday, speculation on a replacement was in full roar. Articles in the Washington Post, Wall Street Journal, New York Times, Politico and Huffington Post all emphasize the replacement issue, as does an online reader Q&A with Robert Barnes, the Post’s Supreme Court reporter.

A rare note of caution is injected by www.scotusblog.com, which warns, “people will talk about a short list. They have no idea what they are talking about. There presumably is a fluid working list of possible candidates at the White House. But it no doubt changes, and only a handful of people even in that building would know who is on it at any given time. The ’short list’ is a dressed up way of saying ‘conventional wisdom.’ ”

The second question focuses on likely tone of the debate. Politico’s main article is titled, and a sidebar says conservatives already are criticizing three possible nominees.

Supreme Court nominations have become increasingly heated over the decades, and special-interest advertising on court nominations is now the norm. Two Nixon appointees were rejected by the Senate, and the rejection of Robert Bork and bruising confirmation of Clarence Thomas left an ill will that has lingered for decades.

Ironically, Souter’s own confirmation, while outwardly more civil, left a different form of ill will. Dubbed by some a “stealth candidate,” because of his scant written record as a short-time appellate judge, conservatives counted on Souter to be a reliable vote, only to see him align himself often with the court?s liberal wing.

As several articles note, “No more Souters” became a mantra on the right, and uncertainty about ideology played a role in the conservative rebellion against failed nominee Harriet Miers. It’s fair to speculate that many Democrats will want a predictably liberal replacement.Perhaps an irony, given Souter’s record on the court, is a New Republic article that dubs him “the Last Conservative.”

During the confirmation processes of Chief Justice John Roberts and Associate Justice Samuel Alito, Justice at Stake closely monitored the number of television advertisements that were run by interest groups on both sides of the aisle.  Justice at Stake press releases on those advertising campaigns can be seen here and here.  Justice at Stake will be a resource on the political efforts mounted around the process of replacing Justice Souter.

Full post as published by The Gavel on May 01, 2009 (boomark / email).