Souter Said to Be Retiring, Giving Obama Court Choice (Update4)

By Greg Stohr

May 1 (Bloomberg) -- U.S. Supreme Court Justice David Souter is planning to retire, giving President Barack Obama his first chance to shape the nation’s highest court, people familiar with the decision said.

Souter, 69, a Republican appointee who became a supporter of abortion rights and affirmative action on the court, plans to step down when the court’s term concludes in late June or early July, one person said. The White House was informed of his intentions, the person said.

Because Souter has generally been a member of the court’s liberal wing, his replacement isn’t likely to shift the court’s balance on many issues. Still, by naming a younger successor, Obama will have a chance to put his imprint on the court for decades.

The White House withheld comment because Obama “has not received a formal communication from Justice Souter, and he deserves the right to make his own announcement,” spokesman Bill Burton said.

During his presidential campaign last year, Obama said he wanted to appoint judges “who demonstrate sound judgment and empathy, who understand how law operates in our daily lives.”

The president is almost certain to nominate a woman, according to many court watchers. Ruth Bader Ginsburg, a 76- year-old who is being treated for pancreatic cancer, is currently the only female justice. The president also will come under pressure to name the first Hispanic to the high court.

Potential Nominees

Potential nominees include Elena Kagan, 49, who Obama named to be the first female solicitor general, the administration’s top courtroom lawyer; Sonia Sotomayor, 54, a Hispanic federal appeals court judge in New York; and Diane Wood, 58, a federal appeals court judge in Chicago who served with Obama on the faculty at the University of Chicago Law school.

Obama also might look to Homeland Security Secretary Janet Napolitano, 51, or Michigan Governor Jennifer Granholm, 50.

NBC News and National Public Radio first reported Souter’s decision. Supreme Court spokeswoman Kathy Arberg said the justice had no comment on the reports.

By making his plans known now, rather than waiting until the end of the term as other justices have done, Souter gives Obama extra time to choose a successor and ensure Senate confirmation before the next term starts in October. Souter could stay on the court until his successor is confirmed by the Senate, which is controlled 59-40 by Democrats.

‘Personal Freedoms’

Obama should nominate someone who, like Souter, will “defend our personal freedoms and ensure that every person has equal access to justice,” Marge Baker, executive vice president of the liberal People for the American Way, based in Washington, said in a statement.

Even before Souter’s retirement announcement was formalized, conservative groups began laying the groundwork for their anticipated opposition to Obama’s selection. “The reported retirement of Justice Souter marks the beginning of President Obama’s legal legacy -- a legacy that will move this country dramatically to the left,” said Jay Sekulow, chief counsel of the Washington-based American Center for Law and Justice.

Souter’s retirement will come at a relatively young age. Five of his eight colleagues are older than him, including 89- year-old John Paul Stevens. Speculation about Souter’s plans had increased in recent weeks because he hadn’t hired law clerks for the court’s next term.

Gay Rights

Souter supported gay rights, restrictions on the death penalty and limits on presidential power. He dissented from the 5-4 decision that sealed the 2000 presidential election for George W. Bush after his efforts to broker a compromise failed.

He was near the middle of the court on business issues. He wrote the court’s 2008 opinion cutting the $2.5 billion punitive damage award against Exxon Mobil Corp. for the 1989 Valdez disaster to $507.5 million.

Souter has made no secret that he longs to return to his native New Hampshire. Speaking before an audience of the American Academy of Arts & Sciences last month, he quipped that he undergoes “sort of an intellectual lobotomy” every October when the Supreme Court returns from its three-month recess.

Some court-watchers called Souter a “stealth nominee” when he was selected by Republican President George H.W. Bush. Souter, a former state court judge, had given little indication how he would rule on federal constitutional issues.

Abortion Case

In 1992 Souter and Justices Sandra Day O’Connor and Anthony M. Kennedy wrote an unusual joint opinion that upheld the right to abortion established in 1973 by the Roe v. Wade decision. Each of the three justices announced part of the decision from the bench.

To overrule Roe “would subvert the court’s legitimacy beyond any reasonable question,” Souter told the courtroom audience. “Roe has not proven unworkable in practice.”

When the court barred clergy-led prayer from public high school graduation ceremonies in 1992, Souter wrote a concurring opinion that said government sponsorship of such prayers is “understood as an official endorsement of religion.”

“However ‘ceremonial’ their messages may be, they are flatly unconstitutional,” Souter wrote.

He joined a series of decisions that bolstered the rights of detainees at Guantanamo Bay in Cuba and carved out a central role for the judiciary during wartime.

Private Justice

Souter has been perhaps the most private of the nine justices, eschewing media interviews and only occasionally giving public speeches. Perhaps his most famous public comments came in 1996, when he told a congressional panel that cameras would televise Supreme Court proceedings “over my dead body.”

He is far more engaging behind closed doors, according to friends and former law clerks.

He is “a much warmer and wittier man than most people suspect,” said Kermit Roosevelt, a former Souter law clerk who teaches at the University of Pennsylvania Law School in Philadelphia. “I doubt there’s any justice better loved by his clerks.”

To contact the reporter on this story: Greg Stohr in Washington at gstohr@bloomberg.net

Last Updated: May 1, 2009 10:16 EDT

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