# Souter to retire- let the speculation begin! **URL:** \ **Category:** Great Debates\ **Created:** [May 1, 2009, 2:41am UTC](https://boards.straightdope.com/t/souter-to-retire-let-the-speculation-begin/494924 "2009-05-01T02:41:26Z")\ **Posts on this page:** 20\ **Page:** 4
**Author:** ![Hari\_Seldon](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hari_seldon/32/5173_2.png) [@Hari\_Seldon](https://boards.straightdope.com/u/Hari_Seldon)\ **Post date:** [May 1, 2009, 10:55pm UTC](https://boards.straightdope.com/t/souter-to-retire-let-the-speculation-begin/494924/61 "2009-05-01T22:55:05Z")
> [@autz](#): > > And what do you think Souter’s legacy is? He sure was a big surprise to those who hired him assuming he’d be a strong conservative voice on the bench. Au contraire, I think he was a genuine conservative, not the activist radical that the Republican party calls conservative. This is not a troll, I truly believe that a conservative is not someone who blatantly favors the Bushite interpretation of the law. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [May 1, 2009, 10:58pm UTC](https://boards.straightdope.com/t/souter-to-retire-let-the-speculation-begin/494924/62 "2009-05-01T22:58:44Z")
> [@DSYoungEsq](#): > > Justice Kennedy is a Conservative, just as Justice O’Connor was. They are only “moderate” by comparison to the even MORE conservative justices to their “right.” And the Court does not have four liberals. It has two liberals and two moderates who generally vote with the liberal members because they cannot stand going so far to the “right” as Justices Scalia and Thomas want to go (to say nothing of Alito and Roberts). If Kennedy is a Conservative, what political label would you give to Thomas? ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [May 1, 2009, 11:26pm UTC](https://boards.straightdope.com/t/souter-to-retire-let-the-speculation-begin/494924/63 "2009-05-01T23:26:55Z")
Sotomayor would be a shoe-in, but she’s pretty moderate. She was a Bush appointee and her opinions tend to be pretty middle-of-the-road. Great pick for a district court, or to replace someone like Kennedy, but not someone to pick if you want to prevent further rightward shift on the court. On the other hand, I know one of her clerks, so that would be cool. I share **DoctorJ** ’s fear that it will take great political skill to make three appointments that are all as liberal as the people being replaced. If Obama calculates that he will have to appoint a moderate, I’m not sure if it makes more sense to do it first or last. It probably comes down to whether he wants a fight about it now, or when Stevens retires. All else being equal, I would think he’d want to focus his power on the budget at the moment which means I think Sotomayor seems likely. Anyone know why Marsha Berzon isn’t mentioned? Is she too old? She always seemed like a good choice to me. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [May 1, 2009, 11:36pm UTC](https://boards.straightdope.com/t/souter-to-retire-let-the-speculation-begin/494924/64 "2009-05-01T23:36:19Z")
[This article](http://www.thenation.com/blogs/state_of_change/431912) discusses some possibilities. ---
**Author:** ![Leaper](https://avatars.discourse-cdn.com/v4/letter/l/4bbf92/32.png) [@Leaper](https://boards.straightdope.com/u/Leaper)\ **Post date:** [May 2, 2009, 12:00am UTC](https://boards.straightdope.com/t/souter-to-retire-let-the-speculation-begin/494924/65 "2009-05-02T00:00:56Z")
I read a quote on a blog recently that stated that Arlen Specter’s defection may give Republicans the chance to filibuster any nominee at the Senate Judiciary Committee level, such that the nominee wouldn’t be able to even get to a general Senate vote. Is this so? Are there any “up in the air” factors that have to be fulfilled before this is possible? How likely is this scenario? (I can definitely see an argument that this would not be the smart thing for Republicans to do, politically.) ---
**Author:** ![El\_Gui](https://avatars.discourse-cdn.com/v4/letter/e/35a633/32.png) [@El\_Gui](https://boards.straightdope.com/u/El_Gui)\ **Post date:** [May 2, 2009, 12:23am UTC](https://boards.straightdope.com/t/souter-to-retire-let-the-speculation-begin/494924/66 "2009-05-02T00:23:50Z")
What’s fair is fair. Obama should nominate someone who is as liberal as Roberts, Alito, Scalia and Thomas are conservative. ---
**Author:** ![Spoke](https://avatars.discourse-cdn.com/v4/letter/s/a88e57/32.png) [@Spoke](https://boards.straightdope.com/u/Spoke)\ **Post date:** [May 2, 2009, 12:31am UTC](https://boards.straightdope.com/t/souter-to-retire-let-the-speculation-begin/494924/67 "2009-05-02T00:31:16Z")
> [@El\_Gui](#): > > What’s fair is fair. Obama should nominate someone who is as liberal as Roberts, Alito, Scalia and Thomas are conservative. I’d say Leah Ward Sears qualifies. When the US Supreme Court held that nude dancing wasn’t a protected form of expression under the US Constitution, she held that it was, under the Georgia Constitution. When the US Supreme Court held that anti-sodomy laws weren’t unconstitutional under the US Constitution, she held that they _were_ unconstitutional, under the Georgia Constitution. In both cases she was interpreting Georgia constitutional language that was nearly identical to the language in the US Constitution, but interpreting that language more broadly (and so as to be more protective of individual rights) than the US Supreme Court. ---
**Author:** ![Captain\_Carrot](https://avatars.discourse-cdn.com/v4/letter/c/f0a364/32.png) [@Captain\_Carrot](https://boards.straightdope.com/u/Captain_Carrot)\ **Post date:** [May 2, 2009, 1:00am UTC](https://boards.straightdope.com/t/souter-to-retire-let-the-speculation-begin/494924/68 "2009-05-02T01:00:02Z")
> [@Mr.Moto](#): > > Remember that the rules of the Judiciary Committee require that at least one Republican has to vote for the nominee for the nomination to make it to the floor - so Obama, while he is free to nominate someone considerably in tune with his philosophy, cannot freeze Republicans out of the process entirely. Actually, I think he can. Specter is on the Judiciary Committee, and he’s the Ranking Member. I believe that under Senate rules, his vote would count as being from the minority. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [May 2, 2009, 1:01am UTC](https://boards.straightdope.com/t/souter-to-retire-let-the-speculation-begin/494924/69 "2009-05-02T01:01:44Z")
> [@Captain\_Carrot](#): > > Actually, I think he can. Specter is on the Judiciary Committee, and he’s the Ranking Member. I believe that under Senate rules, his vote would count as being from the minority. Even after he switched parties? ---
**Author:** ![Captain\_Carrot](https://avatars.discourse-cdn.com/v4/letter/c/f0a364/32.png) [@Captain\_Carrot](https://boards.straightdope.com/u/Captain_Carrot)\ **Post date:** [May 2, 2009, 1:09am UTC](https://boards.straightdope.com/t/souter-to-retire-let-the-speculation-begin/494924/70 "2009-05-02T01:09:03Z")
> [@BrainGlutton](#): > > Even after he switched parties? The Senate organizing resolutions treated him as a Republican when they were written, and as we all know, those don’t automatically get updated. The 2001-2002 session was a special situation. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [May 2, 2009, 1:16am UTC](https://boards.straightdope.com/t/souter-to-retire-let-the-speculation-begin/494924/71 "2009-05-02T01:16:32Z")
**Captain Carrot** makes an accurate textual argument, I think. The relevant Senate resolution (S. Res. 19) states, “resolved that the following be the minority membership: . . . Mr. Specter.” But the textual point is moot, since Specter will be [replaced](http://blogs.wsj.com/washwire/2009/05/01/specter-switch-adds-twist-to-filling-souters-seat/) on the committee. Nevertheless, **Mr. Moto** is not entirely correct. > [@](#): > > The Majority Leader in the Senate has the power, it seems, to go around the Judiciary Committee’s process. A source familiar with the rules of the Senate notes that “a judicial nomination may be discharged from a committee by unanimous consent.” However, since – in this hypothetical scenario – Republicans are already objecting to the nominee, it seems likely that unanimous consent would fail. That said, the source adds, "A motion to discharge a nominee from committee is also in order, but if there is objection to that motion, it must lie over a day. On the next day, you move to executive session to the motion to discharge, the vote on proceeding to executive session is majority vote, however, once you are on the motion to discharge it can be filibustered, so you would need 60 votes on the motion to discharge and then presumably on the nomination too. [Link](http://www.huffingtonpost.com/2009/05/01/how-obamas-supreme-court_n_194688.html) Of course, the Dems could also change the rules mid-course. But that would go over about as well as the GOP nuclear option threat. ---
**Author:** ![Captain\_Carrot](https://avatars.discourse-cdn.com/v4/letter/c/f0a364/32.png) [@Captain\_Carrot](https://boards.straightdope.com/u/Captain_Carrot)\ **Post date:** [May 2, 2009, 1:25am UTC](https://boards.straightdope.com/t/souter-to-retire-let-the-speculation-begin/494924/72 "2009-05-02T01:25:58Z")
> [@Richard\_Parker](#): > > **Captain Carrot** makes an accurate textual argument, I think. The relevant Senate resolution (S. Res. 19) states, “resolved that the following be the minority membership: . . . Mr. Specter.” > > But the textual point is moot, since Specter will be [replaced](http://blogs.wsj.com/washwire/2009/05/01/specter-switch-adds-twist-to-filling-souters-seat/) on the committee. Eventually. Hasn’t happened yet, but it will probably go through fairly soon. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [May 2, 2009, 1:27am UTC](https://boards.straightdope.com/t/souter-to-retire-let-the-speculation-begin/494924/73 "2009-05-02T01:27:47Z")
> [@Captain\_Carrot](#): > > Eventually. Hasn’t happened yet, but it will probably go through fairly soon. So Obama needs to nominate Kagan now! ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [May 2, 2009, 4:44am UTC](https://boards.straightdope.com/t/souter-to-retire-let-the-speculation-begin/494924/74 "2009-05-02T04:44:59Z")
> [@](#): > > Stevens who is 89 is likely though of course this assumes that he is in fact a mortal. There’s speculation that Stevens is going for some records. If he’s still serving, he’ll become the oldest Justice in history on February 25, 2011 and the longest serving Justice in history on July 16, 2012. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [May 2, 2009, 4:49am UTC](https://boards.straightdope.com/t/souter-to-retire-let-the-speculation-begin/494924/75 "2009-05-02T04:49:09Z")
> [@](#): > > I say make it someone who is not only not a judge, not only not a lawyer, but who emphatically and publicly does not even approve of the United States Constitution: Daniel Lazare. Have you read _The Frozen Republic_? Lazare has some … unusual … theories on constitutional law. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [May 2, 2009, 4:49am UTC](https://boards.straightdope.com/t/souter-to-retire-let-the-speculation-begin/494924/76 "2009-05-02T04:49:37Z")
His power is in his bowtie. Compare [with](http://upload.wikimedia.org/wikipedia/commons/a/a3/Justice_Stevens.jpg) and [without](http://msnbcmedia.msn.com/j/msnbc/Components/Photos/050920/050920_justice_stevens_vmed.widec.jpg). Clearly that thing cuts off 15 years. Incidentally, this also explains why Tucker Carlson seems like he is 14 years old. ---
**Author:** ![Rand\_Rover](https://avatars.discourse-cdn.com/v4/letter/r/db5fbb/32.png) [@Rand\_Rover](https://boards.straightdope.com/u/Rand_Rover)\ **Post date:** [May 2, 2009, 5:02am UTC](https://boards.straightdope.com/t/souter-to-retire-let-the-speculation-begin/494924/77 "2009-05-02T05:02:35Z")
It’s really sad that there is more focus on the gender and race of the possible picks than anything else. I saw a talking heads show today with face shots of six “likely” picks, and there was not a single white guy among them. Hopefully someday people will learn that discrimination on the basis of race and gender is bad and will stop doing it. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [May 2, 2009, 6:56am UTC](https://boards.straightdope.com/t/souter-to-retire-let-the-speculation-begin/494924/78 "2009-05-02T06:56:40Z")
I think the majority of the media audience doesn’t know anything or really care about constitutional law or Supreme Court jurisprudence and will only be infotained by discussion of race and gender. So that’s what the media does. To the extent the media talks about more relevant factors, it will probably be even more painful to watch–inevitably focusing on abortion. You happily note, I assume, that Obama has at least publicly remained race and gender-neutral in his discussion of the kinds of candidates he’d prefer. * * * I also want to get this off my chest, even though it is not entirely relevant to SCOTUS appointments: I find this absolutist view of even benign race-based decisionmaking as evil discrimination to be thoroughly ahistorical. In less than a generation a significant proportion of white Americans somehow went from “discriminatory racism is OK” to “government must be race blind,” skipping over any thought of remedial race-conscious actions. Would you have told voters in Alabama in the 1970s not to worry about electing black candidates? Within many of our lifetimes, racial divides meant that white people could not be expected to adequately represent the interests of racial minorities. Short of waiting for the slow erosion of societal prejudices and for social integration to dissolve race as a meaningful characteristic for political purposes, the way to remedy this problem was to deliberately push for and provide descriptive representation. I appreciate the problems associated with even benign decisions made on the basis of race: it is stigmatizing, it entrenches divisions, and it can provide cover for not-so-benign decisions including discrimination against white people. I think that’s all true. But there are other interests to balance against those problems. To pick one small example, consider section 2 of the Voting Rights Act. It calls for maximized minority representation in Congress. Now, maybe you’re one of those people who thinks black people were totally well-represented in Alabama before the Voting Rights Act. If so, that’s a whole 'nother debate. But if not, then you have to concede that benign race-based decisionmaking made real black political empowerment possible. Without the VRA, the composition of Congress and the political history of the last thirty years would be quite different. If you want government to be race blind, you want to scrap most of the VRA and hope that times have changed enough that we no longer need it. That doesn’t mean that race-based decisions are appropriate today, thirty years after the Edmund Pettis Bridge. But it does mean that the question should be an empirical one of whether this kind of ham-handed, remedial decisionmaking is no longer necessary. Are there still such things as black or hispanic interests? And must these interests be represented by people of the same characteristics? These are the real questions of legitimate debate. At a minimum, I think it is an issue that must be approached more carefully and thoughtfully than instantly rejecting considerations of race as if deciding to appoint a Hispanic Justice because she is Hispanic were the equivalent of appointing a White Justice because he is White. There may come a time when that is true, and we may even be there now, but it isn’t true as a matter of timeless principle. I don’t say all of this because I’m particularly interested in debating the topic. I know what your views and the views of many of this board’s members are. You reject the coherence of the concept of racial interests. You would have told voters in Alabama in the 1970s not to worry about electing black candidates. We’ll just go round-and-round. But since you brought it up, I just wanted to express my disagreement with this approach and leave it there. ---
**Author:** ![DSeid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dseid/32/20194_2.png) [@DSeid](https://boards.straightdope.com/u/DSeid)\ **Post date:** [May 2, 2009, 12:52pm UTC](https://boards.straightdope.com/t/souter-to-retire-let-the-speculation-begin/494924/79 "2009-05-02T12:52:31Z")
> [@Richard\_Parker](#): > > I think the majority of the media audience doesn’t know anything or really care about constitutional law or Supreme Court jurisprudence and will only be infotained by discussion of race and gender. So that’s what the media does. To the extent the media talks about more relevant factors… Well of course there is that those of us who are not lawyers have no expertise to judge how otherwise qualified a particular candidate is or is not. But there is also the fact that “identity politics” - including how someone is classified on the political spectrum - is a large, maybe the largest, part of what kind of opposition is mounted against a choice, what kind of capital it costs Obama to get a selection in, and what kind of capital it earns him as well. One presumes that Obama wants to move the court some from its current very Right position (among the 43 past Supremes, the 4 of the 5 [most conservative ever](http://www.nytimes.com/imagepages/2009/02/01/weekinreview/20090201_LIPTAK_GRFK.html) are on the court now and 5 of the top 10, whereas only 1 is among the 10 most liberal). He is also under pressure to have the courts identity make up somewhat reflect the make up of the country. And yes that does mean a female or two, and a Hispanic. Given the judges likely to leave during the course of his tenure how does he do that? That’s politics that the rest of us can understand. ---
**Author:** ![Rand\_Rover](https://avatars.discourse-cdn.com/v4/letter/r/db5fbb/32.png) [@Rand\_Rover](https://boards.straightdope.com/u/Rand_Rover)\ **Post date:** [May 2, 2009, 1:01pm UTC](https://boards.straightdope.com/t/souter-to-retire-let-the-speculation-begin/494924/80 "2009-05-02T13:01:45Z")
> [@DSeid](#): > > Well of course there is that those of us who are not lawyers have no expertise to judge how otherwise qualified a particular candidate is or is not. But there is also the fact that “identity politics” - including how someone is classified on the political spectrum - is a large, maybe the largest, part of what kind of opposition is mounted against a choice, what kind of capital it costs Obama to get a selection in, and what kind of capital it earns him as well. Right. The idiots look only at the gender and race of the candidate. Obama should rise above that and not appease the idiots. [Previous page](https://boards.straightdope.com/t/souter-to-retire-let-the-speculation-begin/494924.md?page=3) [Next page](https://boards.straightdope.com/t/souter-to-retire-let-the-speculation-begin/494924.md?page=5)