The assigned topic: David Souter’s resignation

From what I read the guy actually believed in justice. He became disillusioned at the start of bush jr’s time and as soon as the next liberal is in he retires having a good idea the kind of person that will come into power.

To me it seems one of the most profound choices a president gets to make is who they appoint to the supreme court. Everyone
focuses on who will be picked and what they have done but what I’ve never heard talked about is why a person picks when they pick to retire. Did he become ill or just get tired of it or did he wait until someone who he liked would make the pick to drop out of the game?

I don’t have much to say about this except to agree that the appointment of a Supreme Court Judge is a long-lasting and powerful choice a president gets to make. Ronald Reagan, for example, appointed Antonin Scalia in 1986 and by virtue of that, Reagan’s values are still influencing the U.S.

Of course there are surprises. The Republican president Gerald Ford appointed John Paul Stevens in 1975. There is delightful irony there, because Stevens was appointed to replace William Douglas, who Ford had tried to have impeached from the bench. Douglas was a pretty strong advocate of individual rights as well as an environmentalist; Ford did not like him and Stevens was chosen, at least largely, because he was a Republican. I mean his Segal-Cover score is 0.250 – pretty deeply conservative. But there were surprises coming. In 1992, for example, he upheld Roe vs Wade in Planned Parenthood vs Casey. And then in 2007 he authored an opinion finding that the EPA does have the authority to regulate carbon dioxide. Douglas would have been proud.

It happened again with the appointment of David Souter.  He was appointed by H. W. Bush having been assured (by his Chief of Staff Sununu?) that Souter would vote conservatively.  People did seem to believe that. N.O.W. opposed his appointment, for example. But in 1992 he proved them wrong by voting to maintain Roe vs Wade, even striking down the spousal notification restriction on the right of a woman to have an (early term) abortion. He was also one of four Justices to vote against stopping the recount – the recount which, in essence, confirmed H.W.’s son as president.

Laden with irony, right?

Nevertheless, there are appointments like Scalia’s and Thomas’ that live up to expectation and by virtue of that Reagan and H.W. Bush still have their voice heard in law. And that has been influential. Take the Bush vs Gore recount as an example.

Scalia’s and Thomas’ example teaches us that this Presidential choice is powerful in large part because of its tenure but also because, long after the President has walked the carpet to the helicopter, his choices may profoundly effect the country. But  Souter’s example says not to be too cocky when it comes to making such appointments. It may be that the Justice is willing to learn as he writes opinion after opinion, and it may be that he puts the Nation first instead of the appointing President’s espoused values. In other words, a Justice may show that he can think for himself.

And then, comes the end. A Justice choosing to end his career as a Supreme Court Judge. There are only three ways to leave that bench: death, resignation and impeachment. The only one with real power is resignation.  That way the exiting Justice gets to choose who is going to replace them, as Souter did by choosing to resign when it would be Obama nominating a replacement.

And just as Sandra Day O’Connor did when she waited until Bush came into power in 2000. Hey! Isn’t that interesting! She was one of the five to stop the recount in Florida, propelling Bush into the chair, and Gore back out. Now what was it her husband said when they heard that Gore had been elected:

At an Election Night party at the Washington, D.C. home of Mary Ann Stoessel, widow of former Ambassador Walter Stoessel, the justice’s husband, John O’Connor, mentioned to others her desire to step down, according to three witnesses. But Mr. O’Connor said his wife would be reluctant to retire if a Democrat were in the White House and would choose her replacement. Justice O’Connor declined to comment. (See here for more information on this.)

Justice at this level is political. There is no question that choosing when to retire is the last strong act a Justice can take when he or she leaves the bench.

As for Obama’s tenure as President, whether that is four or eight years, it will be interesting to see if any other Justices depart during that time. It might make a big difference if it is someone like Scalia or Thomas, although I am pretty sure they wouldn’t choose to retire just yet.