Supreme Court Justice Souter To Retire

[tuolumnejim]

Not that it would make any difference.

Link

NPR has learned that Supreme Court Justice David Souter is planning to retire at the end of the current court term.

The vacancy will give President Obama his first chance to name a member of the high court and begin to shape its future direction.

At 69, Souter is nowhere near the oldest member of the court. In fact, he is in the younger half of the court's age range, with five justices older and just three younger. So far as anyone knows, he is in good health. But he has made clear to friends for some time that he wanted to leave Washington, a city he has never liked, and return to his native New Hampshire. Now, according to reliable sources, he has decided to take the plunge and has informed the White House of his decision.

Factors in his decision no doubt include the election of President Obama, who would be more likely to appoint a successor attuned to the principles Souter has followed as a moderate-to-liberal member of the court's more liberal bloc over the past two decades.

In addition, Souter was apparently satisfied that neither the court's oldest member, 89-year-old John Paul Stevens, nor its lone woman, Ruth Bader Ginsburg, who had cancer surgery over the winter, wanted to retire at the end of this term. Not wanting to cause a second vacancy, Souter apparently had waited to learn his colleagues' plans before deciding his own.

Given his first appointment to the high court, most observers expect Obama will appoint a woman, since the court currently has only one female justice and Obama was elected with strong support from women. But an Obama pick would be unlikely to change the ideological makeup of the court.

Souter was a Republican appointed by President George H.W. Bush in 1990, largely on the recommendation of New Hampshire's former Gov. John Sununu, who had become the first President Bush's chief of staff.

But Souter surprised Bush and other Republicans by joining the court's more liberal wing.

He generally votes with Stevens and the two justices who were appointed by President Bill Clinton — making up the bloc of four more liberal members of the court, a group that has usually been in the minority throughout Souter's tenure.

Possible nominees who have been mentioned as being on a theoretical short list include Elena Kagan, the current solicitor general who represents the government before the Supreme Court; Sonia Sotomayor, a Hispanic judge on the U.S. Court of Appeals for the Second Circuit; and Diane Wood, a federal judge in Chicago who taught at the University of Chicago at the same time future President Barack Obama was teaching constitutional law there.

President Obama's choice has an excellent chance of being confirmed by the U.S. Senate, where Democrats now have an advantage of 59 seats to the Republicans' 40.

By the time a vote on a successor is taken, the Senate is anticipated to have a 60th Democrat, as the Minnesota Supreme Court is expected to approve the recount that elected Democrat Al Franken over incumbent Republican Norm Coleman in that state.

[Lord Undies]

This is earthshaking. 

 

[Zathras]

You can bet he waited until after Obumbler was elected so President Bush wouldm't be the one making the appointment.

[Lord Undies]

You can bet he waited until after Obumbler was elected so President Bush wouldm't be the one making the appointment.

That's a given.  He double-crossed this nation before, why not again?

I hope he finds his way to the light on earth before he must face The Light in the after. 

[Hawkgirl]

One liberal will be replaced by another..won't upset the balance...

Bush was able to get in 2 conservative judges and of course the Chief Justice....If he did anything right during his presidency...it would be those appointments.  Not that those are his only accomplishments...but probably the most important.

[The Village Idiot]

he will appoint a leftist politician

[RobJohnson]

he will appoint a leftist politician

Hopefully he can find a left wing judge that is current with the IRS.

[The Village Idiot]

Hopefully he can find a left wing judge that is current with the IRS.

I guess we can hold out for miracles, like my website catching on in popularity

[Sam Adams]

I dunno. We can hope that just as Souter surprised us (in a bad way), Obama's nominee could also surprise us (in a good way).

There's gotta be a pony in there, somewhere.

[thundley4]

I dunno. We can hope that just as Souter surprised us (in a bad way), Obama's nominee could also surprise us (in a good way).

There's gotta be a pony in there, somewhere.

I don't think 0Bama will take any chances with his appointee.  Here's a nice opinion piece about his first judicial nominee.

During the presidential campaign, candidate Barack Obama said that “the criteria by which I’m going to be selecting my judges” is whether they have “the heart, the empathy,” for certain groups of people.

Those worthy of empathy, according to candidate Obama, include the “young teenage mom,” the “poor,” the “African-American,” the “gay,” the “disabled,” the “old.” What’s wrong with being empathetic to all these groups in particular, or to any group or individual in general?
What’s wrong with it is that federal judges swear an oath to “administer justice without respect to persons” and to “do equal right to the poor and to the rich,” among other things. So when, for the first time in American history, a candidate for president announced that he would seek judges whose decision-making is premised explicitly upon partiality — rather than upon the impartiality that the law requires of a judge — it was so unprecedented and so outlandish that many thought it was just campaign talk. Maybe it was something that had worked for some swing-state focus group.

It wasn’t.

President Obama’s first appellate nominee, Judge David Hamilton of the United States District Court for the Southern District of Indiana, has a long résumé of activism that suggests clearly where his “empathy” lies. His first job, fresh out of college, was as a fundraiser for the Philadelphia branch of ACORN, the “community-organizing” group that has been accused of serial election fraud. He later served as a board member, and vice president for litigation, of the Indiana ACLU. And it is very much ACORN/ACLU/Obama–style “empathy” on display in Hamilton’s judicial opinions.

Let’s take just three of his most important constitutional decisions and see how this “empathy” plays out — and for whom.

1. Empathy for a crack-dealing mother, over school officials doing their jobs: United States v. Hollingsworth.

Ms. Hollingsworth’s third-grade daughter had been late to school more than 20 times in a five-month period and had other disciplinary problems. After many unsuccessful attempts by school officials to talk to the mother, the school principal and a school social worker met with the child at school to discuss her problems. The girl said that a truant officer couldn’t visit her home until her mother and the mother’s boyfriend could “get their stuff out” (the “stuff” presumably being drugs). On the basis of this conversation, a warrant was issued, and marijuana and crack were found in the apartment.

But Judge Hamilton suppressed the drug evidence — ruling that the prosecution could not use it in the mother’s trial — on the ground that the police had violated the mother’s “substantive due process” right to “family integrity.” Hamilton added, rather patronizingly, that the school’s practices “tend . . . to undermine parents’ confidence in those most admirable aims and functions of the public schools.”

Judge Hamilton opted to rely not on the text of the Constitution, nor even on a decision of the United States Supreme Court, but rather on a dissenting opinion of then–Ninth Circuit Judge Anthony Kennedy, which in turn relied on an Amnesty International report that stated: “The assault on the parent and child bond is relentless and deliberate in many countries of the world.”

The Seventh Circuit reversed this decision, specifically rejecting Judge Hamilton’s reasoning. The school officials’ speaking with the child about her lateness and truancy was a very minimal “intrusion” into the Hollingsworths’ family relations, the appellate court said, and such questioning was unlikely to “shock the conscience.”

2. Empathy for abortionists, over citizens governing through their elected officials in a democracy: A Woman’s Choice et al. v. Newman.

This case involved a challenge to an Indiana “informed-consent” abortion law that required medical personnel to provide certain information about abortion “in the presence” of the woman seeking one, followed by a waiting period before the abortion could be performed. The Indiana law was virtually identical to the Pennsylvania law upheld by the U.S. Supreme Court in Planned Parenthood v. Casey, as well as the abortion law of Wisconsin that had recently been upheld by the Seventh Circuit. Nonetheless, Judge Hamilton prevented the law from taking effect, and he continued blocking the will of the people of Indiana, as expressed through their elected officials, for seven years.

Hamilton based his decision on studies from Mississippi and Utah showing that similar informed-consent requirements had reduced the number of abortions in those states by about 10 percent. What’s wrong with that? It must mean, Hamilton reasoned, that the Indiana statute would impose an “undue burden” on women. In reversing Hamilton’s determined judicial activism, the Seventh Circuit took the unusual step of reproducing side by side in its opinion the Pennsylvania statute upheld in Planned Parenthood v. Casey and the Indiana law that Judge Hamilton had enjoined, in order to demonstrate that Pennsylvania’s law was, if anything, more restrictive.

3. Empathy for those who want to purge religion from the public square, over people of faith: Hinrichs et al. v. Bosma.

Judge Hamilton declared Indiana’s practice of beginning legislative sessions with a prayer to be an unconstitutional “establishment of religion,” on the ground that the prayers, considered as a whole, were too “sectarian.” That is, a “substantial majority of the prayers were . . . offered in the name of Jesus Christ or with similar phrasing.” Judge Hamilton seemed not to notice that the United States is a country a “substantial majority” of whose population identifies itself as Christian.

However, Judge Hamilton found that prayer offered during the legislative session by an imam in the name of Allah was “inclusive and non-sectarian.”   

Again, the Seventh Circuit reversed Judge Hamilton, ruling that he should not even have gotten to the merits of the Establishment Clause question in the case, because the plaintiffs lacked “standing” to bring the suit. In his zeal to purge prayer from the legislature, Judge Hamilton first erroneously ruled that, because the Indiana legislature had spent approximately $448.38 on the prayers at issue, each and every Indiana taxpayer had a right to make, literally, a federal case of the practice.

The court that reversed Judge Hamilton’s rulings, the Seventh Circuit, is the very court to which he has now been nominated. Judge Hamilton’s judicial approach — the Obama “empathy” approach — is the essence of judicial activism: He bases his rulings on his own personal values, beliefs, and empathy instead of on what the law actually says.

Senate Judiciary Committee chairman Patrick Leahy, presumably with the approval (if not at the direction) of the Obama administration, has done everything in his power to ram the Hamilton nomination through the committee in order to avoid scrutiny of Hamilton’s record. Leahy held a sham hearing in a tiny room just 15 days after Hamilton’s nomination and just one week after Hamilton completed his submission of materials (including some 2,000 pages of speeches and articles, in addition to about 1,200 judicial opinions over 15 years’ time).

Sen. Arlen Specter, the ranking Republican on the committee, protested this unseemly rush. President George W. Bush’s appellate nominees waited an average of 166 days from nomination to hearing, and when Leahy became chairman, the time lengthened to 197 days. Yet Leahy accuses Specter and the Republicans of creating “artificial” delays simply because they wanted to be able to review Hamilton’s record and ask appropriate questions. Leahy has denied a request from Specter and the other GOP Judiciary Committee members for a second hearing on Hamilton, painting the request as unprecedented — even though second hearings were held for Bush nominees Charles Pickering and John Roberts (now Chief Justice of the United States).

The consequences for the federal judiciary of the last election are only just beginning, with the lawless “empathy” criterion now in effect for judicial picks. It’s especially ironic that in order to rush these judges to their new posts on the federal bench — where, instead of following the law, they can dispense “empathy” to ACLU-favored parties — the White House and Chairman Leahy are trampling on another Obama campaign promise: transparency and accountability.

  NRO

Also, recently 0Bama has come out saying that the sentencing laws regarding crack cocaine need to be reformed because they are unfair to minorities.

[Sam Adams]

I did not make myself clear, obviously.

What I meant to say is that Obama will certainly pick someone he thinks will be a liberal. But that person may turn out to be more conservative than anyone could have predicted. In other words, the opposite of Souter, who was appointed by Bush I and thought to be a conservative, but was actually a liberal.

[Carl]

I dunno. We can hope that just as Souter surprised us (in a bad way), Obama's nominee could also surprise us (in a good way).

There's gotta be a pony in there, somewhere.

There will never be a "surprise" from a lib appointee..it just doesn`t happen.
They view the justice and legal system as a way to enact societal change so there is 0 chance one will suddenly become a constructionist.

[Bluesuiter-Retired]

Bill Clinton for supreme court justice!

[USA4ME]

... Souter has followed as a moderate-to-liberal member of the court's more liberal bloc ...

Underlying problem with the USSC is that there are those who view the Constitution as if it were a living, breathing document that means something in 2009 that it didn't mean in 1789, or that they suddenly discovered various "rights" or "restrictions" that were hidden until just recently.  When asked what kind of gov't we would have, Ben Franklin told the questioner “A Republic, if you can keep it.”  With liberal judges, it's a foregone conclusion that they've never had any intention of keeping it.

.

[franksolich]

I dunno. We can hope that just as Souter surprised us (in a bad way), Obama's nominee could also surprise us (in a good way).

There's gotta be a pony in there, somewhere.

I agree, sir.

One can always hope.

Maybe it's unrealistic to hope, but such things are not unknown to happen.

[DixieBelle]

Possible nominees who have been mentioned as being on a theoretical short list include Elena Kagan, the current solicitor general who represents the government before the Supreme Court

OMG! I know her. Only in a professional capacity related to my work and not on a personal one. I just recognize the name. I have no idea what she's like. My money is on  liberal though. I'll have to find out more.......

[Ralph Wiggum]

Also, recently 0Bama has come out saying that the sentencing laws regarding crack cocaine need to be reformed because they are unfair to minorities.

That's not my area of expertise (then again what is  ) but I've never quite understood why there is a such a difference between the sentencing for crack cocaine and powder form.  Might be worthy of a different discussion topic.  I'd be willing to bet that since crack exploded on the scene in the 1980's, it was an overreaction by lawmakers.

[ReaganForRushmore]

Souter gave us Kelo..good riddance.

5 most chilling words with Souter's decision

Supreme Court justice Hillary Clinton

[The Village Idiot]

I did not make myself clear, obviously.

What I meant to say is that Obama will certainly pick someone he thinks will be a liberal. But that person may turn out to be more conservative than anyone could have predicted. In other words, the opposite of Souter, who was appointed by Bush I and thought to be a conservative, but was actually a liberal.

nope. Obama is going to pick a fellow traveler. Someone he knows will not bend the other way.

[NHSparky]

The two biggest 'eff-ups of Bush 41:

1--"Read my lips, no new taxes!"

2--Nominating Souter.

[Mr Mannn]

The two biggest 'eff-ups of Bush 41:

1--"Read my lips, no new taxes!"

2--Nominating Souter.

You can say that again. H5.
Souter is why we should never play ball and accept moderate republicans. Moderates appoint liberals. If we want conservative judges, we need conservative presidents.

If McCain were in there we would have to tar and feather him to force a conservative appointee. It took a near revolt to get conservatives out of Bush.

[rich_t]

You can say that again. H5.
Souter is why we should never play ball and accept moderate republicans. Moderates appoint liberals. If we want conservative judges, we need conservative presidents.

If McCain were in there we would have to tar and feather him to force a conservative appointee. It took a near revolt to get conservatives out of Bush.

Amen.  I've been saying that for years.

H5

[Sam Adams]

That's not my area of expertise (then again what is  ) but I've never quite understood why there is a such a difference between the sentencing for crack cocaine and powder form.  Might be worthy of a different discussion topic.  I'd be willing to bet that since crack exploded on the scene in the 1980's, it was an overreaction by lawmakers.

I was thinking the same thing. Minorities tend to use crack, and middle and upper class whites tend to use the powder; hence, the charge of racism when different penalties accrue to the use of the different forms.

On the other hand, it seems like crack tends to make more addicts then the powder does, though. Users of the powder are still able to function as citizens, it seems. Maybe that's got something to do with it.

But I am no expert, either.

[thundley4]

I was thinking the same thing. Minorities tend to use crack, and middle and upper class whites tend to use the powder; hence, the charge of racism when different penalties accrue to the use of the different forms.

On the other hand, it seems like crack tends to make more addicts then the powder does, though. Users of the powder are still able to function as citizens, it seems. Maybe that's got something to do with it.

But I am no expert, either.

I think a higher percentage of crack users also commit crimes than cocaine users.  That could coincide with the fact that cocaine tends to be a drug of choice for wealthier people than can afford it.