Whew! That Was Close, But Next Time It Could Be Stevens or Kennedy
ByThere was a hush of import yesterday afternoon when the news began breaking that one of George H.W. Bush’s appointments to the Supreme Court, David Souter, expects to resign at the end of this term.
The implication is that this is President Obama’s opportunity to bring change to the Supreme Court. We dissent.
It is likely no coincidence that Justice Souter stayed retirement plans until Arlen Specter gave the Democrats a probable 60 seat filibuster-proof voting advantage. Justice Souter *was* appointed by Bush, but he long ago joined the court’s activist minority voting block. On all but certain securities law matters and a criminal procedure case or two, he is the equivalent of Justice Ginsburg and may very well fall to the Left of Clinton appointee Stephen Bryer on important matters. His legacy is that his appointment effectively prevented the Right from reversing Roe v. Wade.
Obama will merely be trading one liberal activist for another in replacing Souter. Since Supreme Court Justices are essentially appointed to life terms, they often vote differently when they get on the court than anyone could have anticipated from their official background. That was certainly the case with Souter. It is, in fact, possible that Obama will appoint someone who is less inclined to resist the majority than Souter. Not likely, but possible. If age and strategy are not important to the President, we suspect that he will nominate his law professor, Larry Tribe, an activist advocate and probably an activist judge who will most certainly replace Souter’s vote on the Left. If age and strategy are important, we suspect that he will nominate Jeffrey Bleich a former managing partner at the elite firm of Munger, Toles, and Olson, and former President of the California Bar Association, who ditched John Edwards early on to advise Obama during his campaign. Bleich is a tried and true liberal and currently serves as a “special counsel” to the President, but he clerked for conservative Supreme Court Justice William Rehnquist and is personable enough to survive a contentious confirmation hearing. The difference between Souter, Tribe and Bleich isn’t the real import in Souter’s retirement announcement.
The real import in the announcement today is that it could have been the retirement or passing of 89 year-old Justice Stevens or of Justice Kennedy. The Ranking Minority Member position is still vacant with Specter’s departure and there will be a significant test of wills to see who gets it. The retirement announcement served as a national wake up call that the position is important.
Our bets: The practical political skills of Orin Hatch could be useful and the job is his if he wants it, but we wonder if he has the backbone to do what it takes to protect the Court. We’ve heard that Chuck Grassley also wants the job, but he should be busy letting everyone down on the Finance Committee. The ranking member will have a huge effect on Republican efforts to protect the Court after positive results in the 2010 elections and will hire the staff that will make or break any effort to challenge a nomination. The jockeying over this position will be the most significant outcome of the Souter announcement.
