The biggest problem, at least for me, is that with any new Justice comes a slew of recusals. New justices that come from circuit courts have an even higher recusal rate than other justices. The biggest problem with recusals is not the impact they have on the Court, but the impact they have on my term statistics. You cannot imagine how frustrating it is to have 5-3, 6-2, 7-1, or 8-0 opinions.

Unfortunately for me, President Obama probably won’t take my concerns very seriously and is likely to appoint someone who will spark a slew of recusals. Tom Goldstein correctly noted that General Kagan would not spark as many recusals as some commentators have mentioned, but there are still at least 5 recusals from her alone. Judges Diane Wood and Merrick Garland would likely recuse themselves from many cases coming from their circuits. Judge Wood’s circuit, the Seventh Circuit, is the circuit that contributes the second greatest number of cases to the Supreme Court’s docket while Judge Garland’s circuit, the DC circuit, contributes relatively few every year.

Related posts

• Which Justices Write The Most 9-0 Opinions? 5-4 Opinions? (February 27, 2009)
• Which Justice Is The Most Talkative? (November 8, 2007)
• What to Expect if Obama Chooses a Bold Nominee (April 11, 2010)

If the President were to consider a more bold nominee, he would take a series of steps, maybe even starting later this week, to soften the announcement of his pick and to start controlling the story before the final name is ever announced.

First, the President would leak a series of names that make his nominee look moderate. The administration would want to get the current ‘short-list’ out of the news because it is hard to imagine any nominees being more moderate than Elena Kagan. The administration might leak names like Harold Koh, Kathleen Sullivan, and Pamela Karlan. We might even have a report of Koh meeting with staffers in the west wing for three hours on a Saturday morning. The same strategy would come into play if the President wanted to select a politician, but we might hear leaks like Deval Patrick and Jennifer Granholm. I would be surprised if President Obama didn’t start moving a nominee into place in the next two weeks. The timing of Justice Stevens’ announcement gives the President adequate time to soften the blow of a bold nominee by letting groups of similarly ideological candidates test the waters for enough time to get a thorough first-impression. As long as he announces his nominee befor June, the nominee should have little trouble being confirmed before the start of the court’s term in October.

The administration has already started to disassociate itself with the oft-mentioned shortlist with Garland, Kagan, and Woods. By all accounts, the President still hasn’t completely made up his mind but putting out test balloons early would help him leave his options open.

Related posts

• The Upcoming Weeks (May 16, 2009)
• The Healthcare Vote and Justice Stevens’ Replacement (March 22, 2010)
• The Final Opinions (June 27, 2009)

Related posts

• Which Justice Is The Most Talkative? (November 8, 2007)
• What to Expect if Obama Chooses a Bold Nominee (April 11, 2010)
• Unity Defined (June 11, 2007)

Because of his victory yesterday, the President is as popular as ever within his party but has seen his numbers sink with the general population. Yesterday’s vote saw the President finally shed his veneer of bipartisanship and all signs point to the fact that he’d rather make his next move an uncontroversial one. The nomination of Judge Wood or even a dark horse like Kathleen Sullivan would further inflame a Republican base that will soon be raising support (read: $$$) on the President’s healthcare bill. The nomination of Elena Kagan would be a comparatively uncontroversial nomination because she doesn’t have the same paper trail that most politicians or judges have accumulated.

Liberals in his party hope that the President feels liberated by the healthcare vote. In their view, the President no longer needs the capital that he was saving for the healthcare vote and can now make the ambitious ‘Scalia-like’ nomination that they were clamoring for last year. Even in Washington, where the next election start as soon as the previous one ends, a nomination in the summer of 2010 is a long way from the November 2012 election.

Of course, this administration has always been nervous about courting controversy. The President is likely to see the immediate post-HCR period as a time for reconciliation and he’d certainly prefer a vacancy next summer instead of in his weakened position today. The President would have a tough time recovering from HCR and a controversial nomination four months later. Whatever his decision, passage of the healthcare bill yesterday is likely to have a very real effect on the President’s decision.

Related posts

• Judge Sotomayor: Why Her? (May 26, 2009)
• Today Is “Safe Harbor” Day 2008 (December 9, 2008)
• The In Vogue Word Of The Day: Stare Decisis (June 28, 2007)

I’ve updated an up-to-date term chart for you convenience as you prepare for the final opinions of the term.

Note: Justice Kennedy has only issued 6 majority opinions. Justices Ginsburg and Alito have both issued only 7 each. My educated guess says that Justice Kennedy will author a 5-4 majority in Ricci, Justice Ginsburg with author Cuomo, and Justice Alito will author Citizens United.

Related posts

• The Upcoming Weeks (May 16, 2009)
• Walter Dellinger Discusses the End of the Term (June 22, 2009)
• Upcoming Cases to Watch (June 17, 2009)

Related posts

• Judge Sotomayor: Why Her? (May 26, 2009)
• Yankee Justice (May 26, 2009)
• What to Expect if Obama Chooses a Bold Nominee (April 11, 2010)

Let me start off with the assumption that she will almost certainly be confirmed. Her background is relatively moderate and despite a few minor slip-ups, she has maintained a relatively non-controversial paper-trail. Elementary political considerations also mean that Senators will vote in favor of Judge Sotomayor in order to please their own individual constituencies.

I’m not surprised that the President selected such a home-run candidate as his first nominee. For better or worse, judicial nominees have been a losing proposition for recent Democratic presidents and this President was cognizant of that trend. The President hasn’t made any high-profile moves in his first few months in office and he has treaded lightly in the most controversial arenas, preferring to keep his head down in areas like same-sex marriage and abortion. Choosing a nominee like Pamela Karlan or Kathleen Sullivan would have mean jumping head-first into those issues and this President has not shown any inclination to do that. Especially in light of the imminent decision of the California Supreme Court on Proposition 8, the nomination of either of those two candidates would have sparked another potentially-fatal reaction from the right.

Judge Sotomayor likely won the nomination of the likes of Judge Diane Wood and Solicitor General Elena Kagan because of her compelling background story and the presumptive ease with which she will be confirmed. Of all the nominees that had been mentioned, Sotomayor was likely the easiest pick and that fact did not escape the White House.

Related posts

• The Healthcare Vote and Justice Stevens’ Replacement (March 22, 2010)
• Upcoming Cases to Watch (June 17, 2009)
• Today Is “Safe Harbor” Day 2008 (December 9, 2008)

More specifically, Fox News is hypothesizing that the pick will be announced either Tuesday morning or Friday night because of the Memorial Day holiday and the President’s travel plans Tuesday afternoon thru Thursday.

News agencies are still reporting on the same “shortlist” of candidates we’ve been hearing about for the last few weeks. Diane Wood, Elena Kagan, and Sonia Sotomayor are the only names being listed by every account and some also list Carlos Moreno, Pamela Karlan, Jennifer Granholm, Janet Napolitano, and Kim Wardlaw.

Related posts

• The Upcoming Weeks (May 16, 2009)
• What to Expect if Obama Chooses a Bold Nominee (April 11, 2010)
• Upcoming Cases to Watch (June 17, 2009)

I don’t ordinarily take note of political speeches coming from the White House, but I have to think about whether or not the President intentionally chose to speak on this topic with the fight for a judicial nominee looming. The President has been notoriously shy to speak about his views on the divisive subject and, with a nomination battle that will inevitably bring up the issue, he might have been looking to get a head-start on the debate. He spoke at length about developing a reasonable dialogue on the issue and reminded the audience that he supported the “sensible conscience clause” that would allow certain healthcare providers from promoting or facilitating abortion.

I’m not sure if it really means anything, but its definitely interesting that he chose to talk about an issue that is usually a tough subject for judicial nominees.

Related posts

• The Healthcare Vote and Justice Stevens’ Replacement (March 22, 2010)
• Judge Sotomayor: Why Her? (May 26, 2009)
• Today Is “Safe Harbor” Day 2008 (December 9, 2008)

President Obama is also said to be moving full-speed in his search for a replacement for Justice Souter and many speculate that we could get an official announcement before the end of the month.

Related posts

• Upcoming Cases to Watch (June 17, 2009)
• The Final Opinions (June 27, 2009)
• State of the Docket (May 26, 2009)

STATEMENTS FROM THE SUPREME COURT
REGARDING JUSTICE DAVID H. SOUTER’S RETIREMENT
May 1, 2009

Chief Justice John G. Roberts, Jr.:

Justice Souter has served with great distinction on the Court for nearly 20 years. His desire to return to his native New Hampshire is understandable, but he will be greatly missed in our deliberations.

Associate Justice John Paul Stevens:

As Justice Blackmun accurately stated when Justice White advised us of his proposed retirement from the Court, an announcement of this kind “is an emotional occasion.” Because Justice Souter is such a good friend, my first reaction to his decision is one of real personal loss. Because I am confident that I know how his professional work will be judged by future historians, my more important reaction is that the Court will suffer a far greater loss than many now realize. I wish he had postponed the decision that he has just announced.

Associate Justice Antonin Scalia:

David and I have served on this bench together for almost 20 years — sitting next to each other at argument for all of that time. I will miss his always intelligent contribution to our work, but most of all I will miss his companionship. The only consolation is that I am sure he will be happy back in his cold and beloved New Hampshire.

Associate Justice Anthony M. Kennedy:

The two months remaining in this term now become all the more precious to us, for we know our splendid colleague Justice David H. Souter will soon leave here for the home and the State to which he longs to return. In our free moments David was one of the best raconteurs, one of the most adept and amusing storytellers, I have ever encountered. In our conferences and deliberations all of us knew we had the guidance of a powerful intellect and a fine, dedicated jurist. The Nation should be grateful always for his integrity and absolute probity, and for his lasting contributions to our law and to the dignity of this Court.

Associate Justice Clarence Thomas:

I have been privileged to serve on the Court with Justice Souter for almost two decades. It is an honor to have been one of his colleagues at the Court. Though deeply saddened by the departure of a friend and colleague, I am comforted by the knowledge that the bonds of friendship that have been formed during our toils here shall happily remain firm. Virginia and I wish him much happiness and contentment.

Associate Justice Ruth Bader Ginsburg:

Among jurists with whom I have served, Justice David H. Souter is the very best. His level of preparation for the cases we consider is astonishing. He works so hard at getting it right. He is a genuinely caring man and a model of civility. Never have I heard him utter a harsh or unkind word. I count it my great good fortune to have known him as a working colleague and dear friend.

Associate Justice Stephen G. Breyer:

As a member of this court, Justice Souter has given nineteen years of inspirational service to the Nation. David is a close colleague and a warm personal friend. I shall miss him here. So will we all.

Associate Justice Samuel A. Alito:

I was sad to hear of David Souter’s decision to retire from the Court. From my first day on the Court, he has been a wonderful colleague. He has dedicated so many years to exemplary judicial service. We will miss him deeply.

Related posts

• Sources: Souter to Retire – What Now? (April 30, 2009)
• Possible Impact of Justice Souter’s Replacement (May 1, 2009)
• Nominee Speculation (April 30, 2009)

Thanks to SCOTUSblog, we can see the Court’s press release here and Justice Souter’s letter here.

You can read the President’s remarks on Justice Souter’s retirement here.

Related posts

• The Upcoming Weeks (May 16, 2009)
• The Final Opinions (June 27, 2009)
• Supreme Introductions (December 20, 2008)

Even though it is normally the conservatives who worry about accidentally picking a Justice who isn’t what they bargained for (SOUTER), it isn’t impossible for Justice Souter’s replacement to be slightly less liberal than his or her predecessor. When Justice Breyer was nominated to the Court in 1994, he seemed like a standard down-the-line liberal Justice but he has since developed a reputation for betraying the liberal cause. Justice Souter has been a more consistent liberal voice, much more in the mold of Justice Ginsburg or Justice Stevens (ie.Arizona v. Gant).

If President Obama decides to look outside the well-established federal Judiciary for his first Supreme Court nominee, he could end up getting a Justice who breaks the mold of what we now consider a liberal justice. Justice O’Connor was generally conservative but heavily favored States-rights because of her experience as a state legislator. If President Obama were to pick a politician like Deval Patrick, his nominee would face a similarly complex alignment of politics, experience, and jurisprudence.

Related posts

• Possible Impact of Justice Souter’s Replacement (May 1, 2009)
• Nominee Speculation (April 30, 2009)
• Sources: Souter to Retire – What Now? (April 30, 2009)

For better or worse though, President Obama will not be able to replace Justice Souter with an identically-situated clone. While I’m not familiar with any situations in which Justice Souter served a role as what we now consider a “swing vote,” his vote was integral in forging several 5-4 majorities that were not decided along the standard liberal-conservative lines. The most prominent example would probably his position on limiting punative damages in cases like Philip Morris v. Williams (2007) where he lined up with the Chief Justice and Justices Breyer, Alito, and Kennedy to limit the amount of punitive damages that could be leveled upon Philip Morris after they were assessed punitive damages nearly 100 times larger than the compensatory damages.

Just a few weeks ago, the Court decided in Arizona v. Gant (2009) that police officers had limited powers to search the passenger compartment of a car during a routine traffic stop. The case was decided 5-4, but not along the traditional lines. Justice Stevens issued a majority opinion for Justices Scalia, Souter, Thomas, and Ginsburg. Justice Breyer, normally considered a member of the Court’s liberal wing, dissented alongside the Chief Justice and Justices Kennedy and Alito.

The list of cases with non-standard configurations (whatever that means) could go on and on. Last term, the Court decided 5-4 cases along standard lines in only 8 of 12 cases. That leaves a lot of room for Justice Souter’s replacement to significantly alter the trajectory of Constitutional Law in very significant ways.

There are also more subtle changes that Justice Souter’s replacement could signal. People frequently call for a “Justice Scalia-style” Justice, unaware of its real meaning. Despite his enjoyable writing-style, he isn’t nearly as persuasive as people may think. His stubborn adhesion to brightlines and propensity to overturn even recently established precedent has alienated Justice Kennedy on several key issues and there are signs that the Chief Justice, and to a lesser degree Justice Alito, may not be sympathetic to his approach. As Orin Kerr pointed out, there is a reason that a wildly-popular collection of his opinions is called Scalia Dissents.

On a court where several of the most important decisions hinge on the vote of Justice Kennedy, Justice Souter’s replacement could have a very real impact on building consensus for the Court’s liberal agenda. The court hasn’t had a new liberal justice in 15-years and since Justice Breyer’s ascension to the High Court the Court’s liberals may have become ideologically stale. The influx of even a single new ideology could be refreshing for the Court’s liberals and have a significant impact on keeping Justice Kennedy on their side on major issues as well as forging more sturdy majorities in the long-run.

Related posts

• Nominee Speculation (April 30, 2009)
• More On Justice Souter’s Role in Building Consensus (May 1, 2009)
• Sources: Souter to Retire – What Now? (April 30, 2009)

Full Name: Diane Pamela Wood
DOB: July 4, 1950
Age: 58
Undergraduate: University of Texas ‘71
Law School: University of Texas ‘75

Notable Work Experiences: Clerk- Irving Goldberg (CA5 ’76), Harry Blackmun (SCOTUS ’77); Faculty- University of Chicago School of Law 1981-1995

Current Occupation: Judge on United States Court of Appeal for the Seventh Circuit since June 30, 1995.
Confirmed: Unanimously

Most Recent Opinion: Illinois Investment Trust v. American Grading Co.

Judge Wood is known for having a feisty personality that has served her well while she battled with conservatives like Frank Easterbrook and Richard Posner. She was nominated for the CA7 after spending just a few years with then-lecturer Barack Obama on the faculty at the University of Chicago Law School and that experience may have given her a major leg-up on the competition for Souter’s coveted seat. More analysis of her positions from the Chicago Sun-Times here.

Related posts

• Possible Impact of Justice Souter’s Replacement (May 1, 2009)
• Nominee Speculation (April 30, 2009)
• More On Justice Souter’s Role in Building Consensus (May 1, 2009)

•+ U.S. Solicitor General Elena Kagan, a former Harvard University law professor.
• Judge Ruben Castillo of the U.S. District Court for the Northern District of Illinois.
• Pam Karlan, a law professor at Stanford University.
• Judge Margaret McKeown of the 9th U.S. Circuit Court of Appeals in San Francisco.
•+ Judge Diane Wood of the 7th U.S. Circuit Court of Appeals in Chicago.
• Judge Kim McLane Wardlaw of the 9th U.S. Circuit Court of Appeals in San Francisco.
•+ Judge Sonia Sotomayor of the 2nd U.S. Circuit Court of Appeals in New York.
• Massachusetts Gov. Deval Patrick.
• Cass Sunstein, a law professor at Harvard University.

These must be old, because he was tipped by Obama to run the Office of Information and Regulatory Affairs but hasn’t started in that position yet. I’d say the most likely nominees are Kathleen Sullivan, former Dean of Stanford Law School, Elena Kagan, Solicitor General, and Sonia Sotomayor, Second Circuit judge.

I’m not sure I buy into the common consensus that his nominee will result in more of the same. President Obama has the chance to nominate a ferociously liberal justice in the mold of Justice Ginsburg or a technocrat in the mold of Justice Breyer. He can also choose the age of his nominee, will he go for the standard 50-55 range, or shoot younger, for the 40-45 age range like Justice Thomas, who was 43 when he was nominated to replace Thurgood Marshall.

Starting age isn’t always a deciding factor. Justice Souter was 51 when he was elevated from the First Circuit and he retired at 69 after 18 years. Justice Stevens, on the other hand, was nominated at 55 and is now 89-years old.

Related posts

• Possible Impact of Justice Souter’s Replacement (May 1, 2009)
• More On Justice Souter’s Role in Building Consensus (May 1, 2009)
• Sources: Souter to Retire – What Now? (April 30, 2009)

It isn’t terribly surprising, ATL had been reporting that he hasn’t hired terms for OT09 and UTR reported on a clandestine meeting between Justice Souter and Senator Patrick Leahy, Chairman of the Senate Judiciary Committee.

Assuming that the news agencies are correct: What now? Well, if Justice Souter confirms the stories and officially announces his resignation soon, President Obama may take the next few months to choose a nominee and he may even nominate that person before the Court finishes its term.

Because he did not hire any clerks, it is likely that Souter will announce his retirement immediately upon the conclusion of the term, unlikely Justice O’Connor, who announced that she would resign as soon as her replacement was seated. It is also possible that he will take the same path that O’Connor took and simply ask his clerks to stay on a bit longer. Ordinarily, when a Justice announces his retirement at the end of a term, their successor is confirmed by the first Monday in October.

Related posts

• Possible Impact of Justice Souter’s Replacement (May 1, 2009)
• Official Statements from Eight Members of the Supreme Court on Justice Souter’s Retirement (May 1, 2009)
• Nominee Speculation (April 30, 2009)