May 2, 2009

The Changing Face of the Supreme Court

Sort of appropriate for this blog to discuss the retirement of Justice David Souter. Souter’s decision comes as little surprise. He has long made it known that, although he loved the position, he disliked the City of Washington D.C. This move will allow him to retire comfortably back to his native New Hampshire.

Souter was appointed in 1990 by George H.W. Bush. He was termed a “slam dunk” by John Sununu, then White House Chief of Staff and former New Hampshire Governor. Although a lifelong Republican highly touted by conservatives, Souter soon displayed an unexpected stripe, regularly bucking Chief Justice Rehnquist by joining Justice Sandra Day O’Connor and the court’s more moderate wing. It was said that Souter was disillusioned by the bitter partisanship of Washington, and found himself repelled by the hardcore right wing dogma. As the years passed Souter became more liberal, regularly joining with another Republican turncoat, 1975 Ford appointee John Paul Stevens.

With the election of Barak Obama, Souter likely saw an opportunity to remove himself from the D.C. partisanship without taking the risk of unbalancing the court. Souter was likely heartened by then candidate Obama, who stated in an interview reported October 2, 2008 in the Detroit Free Press:

I think that Justice Souter, who was a Republican appointee, Justice Breyer, a Democratic appointee, are very sensible judges. They take a look at the facts and they try to figure out: How does the Constitution apply to these facts? They believe in fidelity to the text of the Constitution, but they also think you have to look at what is going on around you and not just ignore real life… That, I think is the kind of justice that I’m looking for — somebody who respects the law, doesn’t think that they should be making law ... but also has a sense of what’s happening in the real world and recognizes that one of the roles of the courts is to protect people who don’t have a voice

It is likely that Souter wanted out much earlier, but witnessing George W. Bush’s appointments of John Roberts and Samuel Alito, he understood that his departure during a Republican administration would bring more of the same divisive partisanship and hardcore dogma.

Souter had witnessed the outcome of such partisanship in the past. Ronald Reagan’s appointments of Antonin Scalia, Anthony Kennedy and Sandra Day O’Connor, and the elevation of William Rehnquist to Chief Justice guided SCOTUS into a generation-long right-of-center era. No previous president had enjoyed such opportunity to reshape judicial politics and the court membership remained unchanged from 1994 until 2005. Souter likely did not want to see such an occurrence due to his retirement.

Now Obama is poised to equal or surpass the Reagan appointments, and perhaps leave his stamp on the court for an equal length of time. Additional to Souter’s retirement, 75 year old Ruth Bader Ginsburg has recently been treated for pancreatic cancer. The likelihood that she will soon retire is quite high. 88 year old John Paul Stevens is certainly of retirement age. Anthony Kennedy is only 72 years old, but has twice suffered from cardiac problems. Antonin Scalia is a young 72, and will likely survive the Obama years… but perhaps not. The average tenure for a Supreme Courte Justice is 15 years. Seven of the nine current justices have equaled or exceeded that. If Obama is reelected in 2012, and Scalia does not retire before 2018, he will have served 33 years.

Now we are faced with the question of Obama’s direction. Will he follow the path of George W. Bush, who by appointing Roberts and Alito seemed determined to make a hard rightward push, o r will Obama follow the Clinton lead and appoint more moderate judges? Ginsberg and Breyer were known as left-leaning moderates and have maintained that moderation as justices.

If early indications are correct, moderate judge Sonia Sotomayor is running high in the rankings for President Obama’s first Supreme Court nomination. Sotomayor was first appointed to the federal bench in New York’s Sothern District by George H.W. Bush in 1992. In 1997, then President Bill Clinton nominated Sotomayor to replace J. Daniel Mahoney on the 2nd Circuit Court of Appeals.

Oddly enough, and even though her track record while serving on the federal bench showed her solidly moderate conservative, Senate Republicans held up the nomination for over a year by claiming that she was a “judicial activist.” Republicans openly fretted that confirmation to the 2nd Circuit would bring her a step closer to the Supreme Court. An anonymous Republican Senator even placed a block on the nomination. Finally, with court dockets swelling and pressure mounting from all sides, the opposition relented and Sotomayor was finally confirmed in October of 1998.

Although Sotomayor’s credentials are impeccable and she enjoys the broad base support of both political parties, it appears that her nomination will again be met with irrational resistance. This morning on FOX News, former Bush Chief of Staff Karl Rove called on conservatives to oppose the Sotomayor appointment regardless of her qualifications, calling her “more liberal than Souter.” Rove went on to grossly misrepresent her record on the 2nd Circuit. [Watch the video HERE]. I suppose when one is as far to the right as Rove, moderation must appear liberal.

Let us hope, if Sotomayor is indeed nominated, that the Senate displays more wisdom than Rove.