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Brewing Court Battle, Specter’s Switch Top Week’s News

Columnists Mark Shields and David Brooks mull the implications of Supreme Court Justice David Souter's retirement and Sen. Arlen Specter's decision to join the Democratic Party.

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    And to the analysis of Shields and Brooks. That's syndicated columnist Mark Shields and New York Times columnist David Brooks.

    Thank you, gentlemen. It's good to see you. There's a lot to talk about.

    David Souter, stepping down from the Supreme Court. David, political implications?

  • DAVID BROOKS, Columnist, New York Times:

    Well, long term, first, if he calls us the worst city in America, good riddance to him. I think it's a great city. I'm very happy here.

    I think, you know, the conventional thing to say is that it won't be a big shift in the court because he's a liberal vote and presumably there will be a liberal vote.

    But a couple things to be said. First, the average Supreme Court justice now serves over 26 years, so Souter was a liberal vote for the next few years, but Obama has the chance to pick someone who will be a liberal vote for 26 years. So that's just the long term; that's what makes it a big deal.

    And then the second question is, what kind of liberal vote is the next going to be? And a lot of people are saying it should be a liberal Scalia, someone who's just hard-hitting, straightforward arguments.

    But you could have more a liberal John Roberts, somebody who is more conciliatory, but maybe a better coalition-builder. So you've still got choices there. And then, as Marcia said earlier, the general conviction is, it's probably going to be a woman.


    Is that right? Is that what everybody thinks?

  • MARK SHIELDS, Syndicated Columnist:

    Yes, it's not a chance to obviously remake the court philosophically, but it is a chance for the president to shore up the liberal wing of the court, as David put it. And I think that…


    What do you mean "shore it up"?


    Well, I mean, in other words, that David Souter was chosen — when he was chosen by George Herbert Walker Bush, his chief of staff at the time was the former governor of New Hampshire, no particular intimate, but a political supporter of David Souter, John Sununu, who said, "This is a homerun for conservatives."

    I mean, you really don't know what people are going to be. I mean, Dwight Eisenhower said the greatest mistake of his life was Earl Warren. Well, Bill Brennan was also — William Brennan was also an Eisenhower appointee.

    So, I mean, when you start picking people, you think you are — you think you're getting something, but you're not absolutely sure. Whizzer White, Byron White, was John Kennedy's choice for the Supreme Court and turned out to be the bane of many liberals, because he was pro-life.

    So I would say this, that the chances of it being a woman are very strong, perhaps the first Latina, first Asian. And I think it's a chance to see whether Barack Obama meant what he said during the campaign, which was I want someone whose life experiences allow them to show the empathy for the young teenage mother, for someone who's poor, someone who's disabled, someone who's gay. I mean, I think empathy is going to be high on his list of qualifications.


    And he repeated that today, David. What does it mean for the president? I mean, he talked about he's going to consult Democrats and Republicans. What do we think?


    Well, first of all, I hope empathy isn't very high on his list. I mean, that's not why we have a Supreme Court. Do you want a bunch of Dr. Spocks reading the Constitution and trying to interpret it? So I hope they don't go by empathy. And the president sort of went on both sides of that.

    For Obama, it's a chance to make a statement of who he is and what sort of Democrat he is. And that's where I think he's more likely to pick a more John Roberts-y type of guy. That's just, I think, who he feels comfortable with, someone who's calm, professorial, relatively balanced, not the sort of ideological hard-charger.

    Now, it does set up a fight. And I suspect we're going to have a very classic fight, Democrats versus Republicans. I suspect just about every Republican, the Republicans that are now left on the Judiciary Committee, who are still there, the Jeff Sessions, they are pretty much going to vote against. Maybe Orrin Hatch has left some doors open. The Democrats are all going to vote for.

    So we will probably have a very predictable fight, Democrat versus Republican. And, actually, overall what strikes me about this pick is, after all, the very mysterious things the president is doing that are unprecedented, the banks, Detroit, this is something we're actually used to, and it will probably unfold in a pretty predictable way.


    And in the end, he'll get what he wants.


    I would think so. I mean, David Souter, I think, before he leaves the scene, I mean, he is the classic representative of an endangered species, and that is the New England Republican. I mean, and he had all those qualities. He was independent. He was moderate. He was unpredictable. And he came that way, and he's leaving that way. It's rather remarkable.


    That's why it's telling that this happened the same week as Arlen Specter.


    That's right.