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Souter to Exit Supreme Court, Launching Debate on Successor

May 1, 2009 at 12:00 AM EDT
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Amid the news that Supreme Court Justice David Souter plans to retire this summer, the National Law Journal's Marcia Coyle discusses Souter's career and possible replacement.
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JUDY WOODRUFF: The U.S. Supreme Court is about to have a vacancy. Justice David Souter served notice today that he plans to retire.

NewsHour correspondent Kwame Holman has our lead story report.

KWAME HOLMAN: The news was splashed across today’s front pages after National Public Radio broke the story last night.

This afternoon, Justice Souter confirmed it in a one-paragraph letter to the White House: He said he plans to step down this June, at the end of the court’s current term.

Souter also telephoned President Obama, and the president walked in on his press secretary’s regular briefing to make the formal announcement.

BARACK OBAMA, President of the United States: The reason I am interrupting Robert is not because he’s not doing a good job; he’s doing an unbelievable job. But it’s because I just got off the telephone with Justice Souter. And so I would like to say a few words about his decision to retire from the Supreme Court.

Throughout his two decades on the Supreme Court, Justice Souter has shown what it means to be a fair-minded and independent judge. He came to the bench with no particular ideology; he never sought to promote a political agenda.

KWAME HOLMAN: Souter has been on the court since 1990, after he was nominated by the first President Bush. He had served as New Hampshire’s attorney general and as a federal appeals court judge.

JUSTICE DAVID SOUTER, U.S. Supreme Court: If it were possible for me to express to you the realization that I have of the honor which the president has just done me, I would try, and I would keep you here as long tonight as I had to do to get it out.

KWAME HOLMAN: At first, Souter was viewed as a moderate conservative. At his Senate confirmation hearings, then-Senator Joe Biden questioned him about abortion law.

JOSEPH BIDEN, Vice President of the United States: To ask you what principles you would employ does not in any way tell me how you would rule on a specific facts situation.

JUSTICE DAVID SOUTER: The particular action that you are referring to is one which falls within a broad concept of liberty. If liberty means what it is we can do if we want to do it, then, obviously, in that sense of your question, the answer is yes.

KWAME HOLMAN: Within two years, Souter joined in reaffirming the right to abortion. He went on to side mostly with the court’s liberals. That included the 2000 Bush v. Gore presidential recount and the landmark terror case allowing detainees at Guantanamo Bay to take their cases to federal courts.

Despite his 19 years on the court, the 69-year-old Souter never warmed to life in Washington. He has said he had the best job in the world “in the world’s worst city.”

His departure gives President Obama his first chance to make a mark on the high court. This afternoon, he described the kind of individual he wants for the job.

BARACK OBAMA: I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role. I will seek somebody who shares my respect for constitutional values on which this nation was founded and who brings a thoughtful understanding of how to apply them in our time.

KWAME HOLMAN: At the Capitol, a leading Republican on the Senate Judiciary Committee, Orrin Hatch of Utah, voiced hope, but also concern.

SEN. ORRIN HATCH (R), Utah: I just hope that the President Obama will appoint somebody who will observe the law and interpret the laws that are made by those who are elected to make them, rather than do what he said he was going to do during the campaign, which was to get political activists on the court.

KWAME HOLMAN: The president said today he hopes to have the soon-to-be empty seat filled in time for the next court session, which starts in October.

Souter's retirement announcement

Marcia Coyle
National Law Journal
We had been watching closely one of the tea leaves that reporters who cover the court watch close to the end of the term, and that is whether a justice has hired all of his or her clerks for the new term. And Justice Souter had not.

JUDY WOODRUFF: For more on Justice Souter and the implications of his retirement, I'm joined by Marcia Coyle of the National Law Journal.

Marcia, good to have you with us again.

MARCIA COYLE, National Law Journal: Hi, Judy. Big day.

JUDY WOODRUFF: So, surprise for those of you who watch the court?

MARCIA COYLE: Well, in a way, it always feels like a surprise, but we had been watching closely one of the tea leaves that reporters who cover the court watch close to the end of the term, and that is whether a justice has hired all of his or her clerks for the new term. And Justice Souter had not.

He's traditionally been the last to hire, but as of yesterday that was even very late for him. So that was sort of a signal that something may be coming.

JUDY WOODRUFF: Now, he is relatively young to be retiring for a Supreme Court justice. He's 69, but there are five justices who are older than he is.

MARCIA COYLE: Yes.

JUDY WOODRUFF: What were the reasons, do you think?

MARCIA COYLE: Well, I think, as your correspondent said, this is someone who said he had the best job in the worst city in the world. This is someone who loves the White Mountains of New Hampshire, who's climbed all 47 peaks, and who loves steeping himself in history, literature, and other books.

And I suppose you could say that, at 69, he dares to see himself doing something different with the rest of his life, and especially while he's still healthy. And I think he's ready to go back to New Hampshire.

Although I will say that, in his letter to the president, he indicated that he still intends to remain active as an associate justice, which means he could sit when called upon on some of the lower federal circuit courts.

Souter's influence on the court

Marcia Coyle
National Law Review
Justice Souter has been very willing to take him on when he disagrees with him. In his opinions, he'll engage in very lengthy, historical analysis and say, 'OK, well, you know, I looked at the same thing, but I think you can read it differently.'

JUDY WOODRUFF: Now, we heard some of the main cases that he's been involved in over the years in Kwame's report. What has his influence been on the court?

MARCIA COYLE: When I think of Justice Souter, I think of him as influential in two ways. One, on the court itself as an institution, he has this reputation of being bookish and eccentric.

But when you see him on the bench, he is anything but that. He is probably one of, if not the most incisive and tenacious questioners from the bench. He can find a weakness in a lawyer's argument, and then he is a pit bull until that lawyer acknowledges it.

And he listens well to the other justices' questions and almost, through his questions to a lawyer, engages the other justices in a dialogue. And I think that's very important in sounding out, you know, the strengths and weaknesses of the case that's before them.

He's also been a counterpoint to Justice Scalia in his opinions. Justice Scalia has a very strong, clear view of what certain portions of the Constitution mean and what the founders intended.

And Justice Souter has been very willing to take him on when he disagrees with him. In his opinions, he'll engage in very lengthy, historical analysis and say, "OK, well, you know, I looked at the same thing, but I think you can read it differently."

On the other side are his decisions, and I think he will be remembered for his decision reaffirming Roe v. Wade in 1992. He was one of three justices, a very unusual majority opinion written by three justices, an electric moment in the courtroom when each read a section of that majority opinion. His opinion focused on stare decisis, the importance of old opinions.

Disappointing conservatives

Marcia Coyle
National Law Review
When he was nominated, his good friend, Warren Rudman, who was working in the Bush administration at the time, you know, said this was a homerun for conservatives.

JUDY WOODRUFF: Now, and conservatives, as you suggest, have been pretty unhappy with him.

MARCIA COYLE: Yes, and that was obviously one of the reasons why. When he was nominated, his good friend, Warren Rudman, who was working in the Bush administration at the time, you know, said this was a homerun for conservatives.

And at the time, many thought Roe v. Wade could fall, but he disappointed them and has continued to disappoint, them as he's written decisions and joined decisions that show a strong belief in separation between church and state. He's been very strong in the First Amendment area for free exercise of religion and speech. I could go on.

I mean, he -- just this term, for example, he also wrote the majority opinion in the case giving protection to workers who participate in an employer's investigation of sexual harassment, writing an opinion that says they are protected from retaliation. So he's been influential in a lot of different areas.

Changes on the court

Marcia Coyle
National Law Review
I think we've been rumoring that the president will be looking at certain appellate court justices who are women, women who are also Hispanics.

JUDY WOODRUFF: Just a short amount of time left, Marcia. How could -- those of you who watch the court -- how could this change, change what the court does, and leading names people think that President Obama might pick?

MARCIA COYLE: OK. There are some who would say it's not going to change much, because the president's replacing a member of the liberal wing with a member of the liberal wing.

But I think, on the other hand, you can't underestimate the influence of one justice. John Paul Stevens in the liberal wing has eked out major victories through the force of his knowledge of the law, his experience, his personality. So whoever the president appoints could well be another John Paul Stevens.

As far as names go, we're looking -- I think we've been rumoring that the president will be looking at certain appellate court justices who are women, women who are also Hispanics. He's looking to perhaps put Diane Wood of the Seventh Circuit. He might be looking at Elena Kagan, who just was confirmed as solicitor general of the United States, Sonia Sotomayor of the Second Circuit.

JUDY WOODRUFF: And women, because there's only one woman on this nine-person court, and women are a majority of the country.

MARCIA COYLE: As Justice Ginsburg has said many times, she is lonely on the Supreme Court.

JUDY WOODRUFF: And, quickly, Marcia, any indications of any other of these older justices retiring?

MARCIA COYLE: No. I think Justice John Paul Stevens is going very strongly, and Justice Ginsburg has made it clear that, despite her bout with cancer, she's in there for a bit longer.

JUDY WOODRUFF: Marcia Coyle, thanks very much.

MARCIA COYLE: My pleasure.