The Supreme Court Doesn’t Sout Him Anymore

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Justice Souter waves good-bye to Washington forever. Photo: Everett Bogue; Photos: Getty Images

When the ailing Ruth Bader Ginsburg hinted that President Obama would soon have a Supreme Court vacancy to fill, we wondered if she was referring to herself or to one of the other aging justices. But in fact she may have been alluding to David Souter, who, at only 69, has decided to step down from the bench at the end of the Court's term in June, leaving behind the city he never liked for the peaceful calm of New Hampshire. Souter was appointed by George H.W. Bush in 1990, but, in an unpleasant surprise for Republicans, proved himself to be reliably liberal. Which means that Obama's choice of a replacement, we can assume, won't tilt the balance of the Court much (though some disagree). Regardless though, any Supreme Court vacancy has implications for national politics. How hard will Republicans fight? Should they fight at all? And does Obama have to pick a woman?

• Chris Cillizza suspects that the fight over Souter's replacement "could well sidetrack other legislative priorities of the administration," and "severely" test "the Obama administration's vaunted ability to deal with a number of major challenges all at once." [Fix/WP]

• Josh Marshall disagrees, contending that the "nomination is as likely to enhance Obama's standing and political power as diminish it. Which means there's no reason — none that I see — to see it as a zero sum going [sic] versus other priorities like health care." [TPM]

• John Nichols notes "the chances that his nominee will be confirmed with relative ease have risen significantly in recent days" because Arlen Specter's defection will give Democrats a filibusterproof majority. At the same time, the Senate Judiciary Committee's "arcane set of rules" means any controversial Supreme Court nominee will need "the consent of a minority party member," which previously probably would have been Specter. [State of Change/Nation]

• William A. Jacobson concurs that "Specter's defection may give Republicans the ability to filibuster judicial nominees at the Judiciary Committee level, so the nominees never get out of committee," but "assuming Souter is replaced with a roughly equivalent moderate liberal, I don't see Republicans picking this fight." [Legal Insurrection]

• Alex Koppelman says Republicans won't be able to do much "to block the nominee," but "they can certainly muster quite a bit of opposition, especially if whoever Obama picks has a paper trail on hot-button issues for the right like abortion or gun control." [War Room/Salon]

• Carol Platt Liebau doesn't think a new justice will matter, since he or she will be as liberal as Souter. Though it's possible that a "charismatic new liberal" could "seduce" swing vote Anthony Kennedy. [Town Hall]

• Jennifer Rubin agrees that "[a]n energetic, articulate and bright advocate of that brand of judicial thought will shape the Court’s opinions and potentially draw in the ever-wavering Justice Kennedy." [Contentions/Commentary]

• Steve Benen says "the leading contenders include federal appeals court judges Sonia Sotomayor and Diana Pamela Wood, Solicitor General Elena Kagan, and Georgia Chief Justice Leah Ward Sears. The early buzz is focused heavily on Sotomayor, who would be the Supreme Court's first Hispanic justice." [Political Animal/Washington Monthly]

• Ben Smith writes that while "conventional wisdom" is "saying that Judge Sonia Sotomayor is a likely pick," he suspects "that Obama will be tempted to pick one of the prominent legal minds whom he knows personally, and whose philosophy he likes, given his own engagement with legal theory." [Ben Smith/Politico]

• Kevin Drum doesn't expect this to "change the ideological makeup of the court a lot, but it will probably move it to the left both a little more reliably and for a longer time." [Mother Jones]

• Orin Kerr speculates that Republicans will argue that Souter was a centrist and Obama should appoint another centrist to maintain the court's balance. [Volokh Conspiracy]

• Matt Yglesias predicts that "Republicans will either throw an embarrassing and pointless tantrum before losing or else they’ll calmly accept that it makes no sense for a small and unpopular minority to object to the replacement of one liberal by another." [Think Progress]

• Marc Ambinder thinks that "[i]n reality, Obama can appoint anyone he wants" and will be "under enormous pressure to name a woman ... especially given the illness of Justice Ruth Bader Ginsberg [sic]." [Atlantic]

• Rod Dreher says this won't "change the philosophical balance of the Supreme Court," but he prays for the health of Anthony Kennedy and hopes "Nino Scalia is eating plenty of lean meats and vegetables these days." [Crunchy Con/Beliefnet]

• Ed Whelan claims that while "Souter has been a terrible justice ... you can expect Obama’s nominee to be even worse," and could prove the key fifth vote on a number of issues, like same-sex marriage, the death penalty, and human cloning. [Corner/National Review]

• Tom Goldstein thinks "it has to be a woman" to correct the Court's "absurd" gender imbalance. [Plank/New Republic]

• Emily Bazelon isn't convinced Obama has to pick a woman, though "it sure would be nice if Ruth Bader Ginsburg weren't all by her lonesome up there." But would anyone complain if Obama "picked a great black male judge"? [XX Factor/Slate]