The news just broke last night that Supreme Court Justice David Souter will retire. Souter was appointed by George HW Bush and proceeded to drive conservatives insane by refusing to bend to the right-wing agenda. Instead he has been what I consider a moderate voice on the court, though in general he has voted along with the liberal bloc. He was not as unpredictable as Justice Sandra Day O’Connor was, for example.
Naturally this gives President Obama an opportunity to leave his mark by appointing a judge early on in his term – and thanks to Sen. Arlen Specter’s party switch a few days ago, the Republicans are in a uniquely powerless position to interfere with Obama’s selection.
Unfortunately, this golden opportunity is kind of wasted, since Souter was already a member of the liberal bloc on the Court, so any pick Obama is likely to make probably won’t vote much differently than Souter would have, on average. A real coup would have been for a conservative justice to be retiring, which would then allow Obama to shift the balance of power, something that President Bush was never able to achieve despite having two opportunities to appoint new justices.
Still, if Obama picks a woman justice (as is being rumoured) then there still will be a shift in perspective in the Court – the decisions that SCOTUS renders are important not just for the end result but also for the opinions and dissents therein, and a female voice in all of that will be a good thing. Since Justice O’Connor was the first woman to serve on the Court, and after her retirement was replaced by another male (Justice Alito), there’s an opportunity here to bring some of that balance back. Plus, she was of an earlier generation, so Obama’s hypothetical female Justice pick would probably be someone younger for whom the equal rights battles of the Sixties are history rather than experience. So we can assume that the replacement would be more, ahem, militant in some respects when it comes to womens’ issues. I think that is fantastic; of course the Republicans are going to freak out accordingly.
Overall, President Obama has a chance to influence the Court in a more subtle, yet nevertheless profound, way. Let’s hope he doesn’t botch it and pull a Harriet Miers…