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Analysis: Justice Souter's Retirement, Likely Replacements on Supreme Court

Robert Barnes
Washington Post Supreme Court Reporter
Friday, May 1, 2009 12:00 PM

Washington Post Supreme Court reporter Robert Barnes took your questions about the retirement of Supreme Court Justice David Souter and discussed whom the Obama administration might nominate to replace him.

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Robert Barnes: Hello everyone. Big news at the Supreme Court, of course. Or at least, what people tell us is big news at the Supreme Court. Still no official word from Justice Souter or the court about his plans. But certainly all indications are that President Obama will have a chance to start putting his stamp on the court. Much of what we might discuss today may not be more than speculation, but let's get at it.

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Washington, D.C.: What are the top two or three issues you think Obama will use to guide the choice of his nominee, and what issues do you think he might place less importance on?

Robert Barnes: Good question. Obama has drawn heat from conservatives for saying he would look for judges who have empathy and "heart." What he has said is that the court agrees much of the time, but he would want justices in those few high-profile cases where they are closely divided to have some real-life experiences. I think he will put less importance on whether the person is now a federal appeals judge. Everyone on the court is one of those, and there has been a clamoring by some for someone who would bring a different perspective. One thing we can reasonably sure of, I think, is that Obama's experience as a teacher of constitutional law will make him as involved as any president has been in the choice. here's a story where I explored those themes in a little more detail.

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washingtonpost.com: Supreme Court's Direction Hinges on Who Wins '08 Race

Robert Barnes: it's here

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Arlington, Va.: How much do you think Justice Souter's mugging influenced this decision to retire? Or is mugging not one of the "ways of Washington" that he supposedly disdains?

Robert Barnes: Oh, I think that had nothing to do with it. It was, what, five years ago? I think it was clear before then that Justice Souter preferred New Hampshire to our lovely city.

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New York, NY: Any questions now why Democrats are paying good money to run Specter as a Democrat? I'm appalled at the manipulation and cynicism involved in purchasing Specter's votes for Obama's Supreme Court nominations, but don't you think that's exactly what is going down here, Robert?

Robert Barnes: I think there's just as much speculation that not having Specter as the ranking minority member on the committee could cause Democrats more trouble. Unless Obama nominates someone well outside the mainstream, I would think he already has all the Democrats he needs for confirmation.

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Arlington, Va.: Can you cite an example or two of Justice Souter's "well-known disdain for the ways of Washington"? Wasn't he also the Justice who was mugged while jogging in recent years?

Robert Barnes: Well, we've covered the mugging. I think it is more that while the other justices seem to love what Washington offers to Supreme Court justices, Souter didn't seem much interested. Justice Ginsburg recently talked about how she dragged him to the opera, and everyone was amazed to see him out. But I think he likes the work--you don't stay at a job for 20 years if you don't.

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Washington, DC: I had the privilege of learning Constitutional law from Prof. Lawrence Tribe many years ago. While I don't necessarily agree with some of his stances, I have nothing but admiration for his intellect and analytical skills. Is there any chance that he would be appointed to the Court or does his being a white male eliminate him from competition? Thank you.

Robert Barnes: I would think it unlikely, although he and Obama are close. But presidents tend to look for younger candidates, who will carry on the work long after their own terms are up.

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Anonymous: I hear talk of Obama possibly naming a Republican to the bench. Any ideas? How about Harriet Myers?

Robert Barnes: I'm updating my list of possibilities.

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Chestertown, MD: Robert: What are the top criteria you expect to guide President Obama's selection of a SCOTUS nominee? Could you envision serious consideration being given to anyone outside of the legal profession?

Robert Barnes: I think there would be no serious consideration of that at all. Why would a nonlawyer want to sit through ERISSA cases?

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New Haven, Conn.: Since Souter is a solid liberal, what else can Obama do to re-shape the court other than appointing a very young female liberal (in hope to occupy the seat for another 40 years)?

Robert Barnes: I'm not sure what a "solid liberal" is, but I catch your drift. You are right that Obama's replacement of Souter will likely do almost nothing to shift the ideology of the court. What liberals I've talked to would like is someone younger, as you mentioned, and perhaps something of a rabble-rouser, in the mold of say, Scalia on the other side. But whether those kinds of candidates fly these days is unclear, and Obama seems like he would be cautious in his first pick for the court.

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Prescott, AZ: Any chatter about Hillary Clinton as the (or a future) nominee? I thought there might have been some sort of talk like that when Obama didn't pick her for VP.

Robert Barnes: Everyone likes to talk about this one, but I couldn't find much evidence of it being a serious discussion when the issue came up this summer. Kevin Merida and I wrote a story about it that maybe our moderator can find. Being on the Supreme Court is a much different life than a politician's, and I'm not sure it would be everybody's cup of tea. On the other hand, I never pictured Hillary Clinton as secretary of state, either.

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Potomac MD: Robert, do you think that the odds are pretty much close to 100% that the next couple of nominess will be women and/or minorities? Given that Supreme is heavily biased 8-1 to men and 8-1 to whites, it seems totally logical, and approrpriate, that greater weight really needs to be given to balancing this gross disparity.

Given that one of the candidates being talked about is a black woman, personally I can't wait to see the smackdown she puts down on Clarence Thomas!

Robert Barnes: Smackdowns, alas, are rare at the court. But I think almost everyone believes that Obama will look for a woman or minority--or someone who is both--especially because of the numbers you cite.

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Washington, DC: Among the candidates whose names are being thrown out there, are there any that might cause a Harriet Miers-like backlash from the left?

Robert Barnes: That's a very good question that I don't know the answer to, partly because we don't really know who is on the administration's list, or even if there is one. Certainly, there is going to be pressure from the left to appoint someone they believe is not suspect on any of their issues. At the American Constitution Society meeting last summer, there was grumbling from some who said Obama should appoint moderates.

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The Young Ideologues: Recent history shows that to be a Republican thing.

Clinton nominated 60 year old Ruth Bader Ginsberg at Orrin Hatch's behest and then followed with his own choice, 56-year old pro-corporate centrist Stephen Breyer.

Robert Barnes: Yes, but I also think it is going to become a Democratic thing.

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Washington, DC: By custom and as a matter of impartiality, justices typically wait to retire until a member of the party who seated them is in the White House. Souter has done just the opposite. Is there any way to interpret this other than Souter feels the USSC is more about politics than law?

Robert Barnes: I'm not sure I agree with you. I think justices usually leave when they just can't do the job anymore or they are tired of it. Justice Thurgood Marshall, for instance.

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Boston: Do you think the other Justices privately follow the coverage and speculation of who their new colleague might be? Is there such thing as water cooler gossip with the Supremes? An office pool?

Robert Barnes: I am sure they follow it quite closely. I only wish I knew if there was an office pool.

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Robert Barnes: I'm afraid I've got to run. Thanks for spending some time here, and I'm sorry I can't stay longer. But we are going to be talking about this for a long time.

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