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Impact Of Souter Retirement Examined

ROBERT SIEGEL, host:

From NPR News, this is ALL THINGS CONSIDERED. I'm Robert Siegel.

Supreme Court Justice David Souter formally announced his retirement today in a letter delivered to President Obama. Souter's departure plans, first reported by NPR last night, gave the president his first opportunity to name a new justice. NPR legal affair correspondent Nina Totenberg reports.

NINA TOTENBERG: Shortly after receiving Justice Souter's letter and talking to him on the phone, the president came to the White House Press Room to praise the retiring justice for his fair mindedness, independence and compassion. And then the president laid out his criteria for a nominee: someone dedicated to the rule of law, someone who knows the limits of the judicial role and someone with empathy.

President BARACK OBAMA: I will seek somebody with a sharp and independent mind and a record of excellence and integrity. I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a casebook. It is also about how our laws affect the daily realities of people's lives.

TOTENBERG: Names of potential nominees have been circulating wildly around Washington today. With only one woman currently on the court, most observers expect the woman, and perhaps a minority. Among the names prominently mentioned: the newly confirmed solicitor general and former Harvard Law School dean Elena Kagan, federal judges Diane Wood, Ann Williams, Sonia Sotomayor, former Stanford Law School dean Kathleen Sullivan.

But even before Justice Souter had confirmed his intention to retire, conservative groups were branding all of these as radical liberals and warning the president to expect a fight on any of them. Justice Souter, who is 69, said he intends to step down in June, at the time of the court's summer recess. That will leave the court with eight justices until a ninth is confirmed. Depending on when President Obama nominates a replacement, confirmation hearings could begin as early as July or as late as September. Senators will want time to examine the nominee's record.

Whoever is chosen, she or he is not likely to change the basic ideological balance of the court, because Souter is considered a member of the court's liberal wing. That's something conservatives have never forgiven him for. Named to the court by the first President Bush in 1990, Souter was dubbed the stealth candidate because his record on the New Hampshire Supreme Court gave few indications of this views on the hot button issues of the day. The president and his top aides, however, assured conservatives that they would not be disappointed. In the end, they were. Within just a few years, political conservatives were using Souter's name as an epithet of betrayal.

Souter, it should be said, was not a liberal in the mold of the man he replaced, Justice William Brennan. He was, as his biographer East Carolina Professor Tinsley Yarbrough put it, a traditional New England Republican conservative, one who defers to precedent, tends to defer also to business, has a slightly prosecutorial bent, but a justice who has an expansive view of civil liberties and civil rights. That meant that on a court that had been marching steadily to the right with each Republican appointment after 1980, Souter found himself, more often than not, aligned with the court's moderate to liberal wing.

David Hackett Souter, raised on a farm in rural East Weare, New Hampshire, was Rhodes scholar and Harvard Law School graduate. A lifelong Republican and a great, great grandson of the man who moved the nomination of Abraham Lincoln, Souter, early in his career, went to work for New Hampshire's Republican State Attorney General Warren Rudman, eventually replacing Rudman in that job. After that, he was appointed a state trial judge, promoted to the State Supreme Court where he served for 12 years, and then to the Federal Appeals Court, where he served for just a few months before being to the US Supreme Court.

Souter's nomination was the stuff of movies: unknown judge is plucked from obscurity and catapulted into the national spotlight. Just two days after the unexpected retirement of Justice William Brennan, Souter got a call from the White House asking him to come to Washington.

When Souter's longtime mentor and friend Senator Warren Rudman dropped the judge off at the airport later that day for the trip to DC, Souter suddenly turned to him in horror.

Mr. WARREN RUDMAN (Former Republican Senator, New Hampshire; Former State Attorney General, New Hampshire): And he said, oh, my goodness. He said Warren, I've got $3 on me. And so I gave David $100, and I've told a lot of people I really thought that I ought to put a sign around his neck that said take this man off the plane at Washington.

TOTENBERG: The next day, Souter found himself in the White House, being interviewed by the president. Less than two hours later, the New Englander was summoned back to the Oval Office and offered the nomination. Short thereafter, a dazed looking David Souter stood next to President Bush as his nomination was announced.

President GEORGE H.W. BUSH: Judge Souter, I believe with all my heart, will prove a most worthy member of the court.

TOTENBERG: If David Souter looked shell-shocked that day, his demeanor was far different at his confirmation hearing, when he wowed the committee with his measured intelligence and grasp of legal questions. After three days on the witness stand, his nomination was confirmed 90 to nine.

The confirmation, it turned out, was child's play compared to the work of the court. As Souter would later put it, it was as if a tidal wave hit him upon his arrival. After a rocky first year, though, his ferocious intellect kicked in. He soon became one of the court's most dogged questioners, and behind the scenes, a force to be reckoned with. Most prominently, he was an essential part of the so-called troika that, in 1992, was responsible for reaffirming the core holding of the court's abortion decision, Roe versus Wade.

Whether or not the court was right in its decision 19 years earlier, said Souter, the court must now presume the abortion decision was correct in the name of continuity and a stable society based on stable law.

Mr. DAVID SOUTER (Former Supreme Court Justice): A decision to overrule Roe's essential holding under the existing circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the court's legitimacy and to the nation's commitment to the rule of law.

TOTENBERG: That same year, Souter, a deeply religious man, would write a concurring opinion in the separation of church and state case, in which he staked out his view that the Constitution's framers intended that government be forbidden to prefer one religion over another, and that government also is forbidden to prefer religion over non-religion.

Souter made the same point in 2005, when he wrote the court's majority opinion, ruling unconstitutional the posting of the 10 Commandments in a Kentucky courthouse.

Mr. SOUTER: The divisiveness in religion in current public life is indisputable. This is no time to turn our back on a principle of neutrality that has served religious liberty and freedom of conscience so well.

TOTENBERG: Notably, he was among the court's four dissenters in Bush versus Gore, the case that decided the 2000 election. Indeed, he was reportedly so upset by what he viewed as the political nature of the court's decision that he contemplated retiring then. He was more conservative in cases involving criminal law and business law. The author of a number of big money business decisions, he wrote the court's five-to-three ruling, striking down as excessive a $2.5 billion punitive damage award against Exxon for a massive oil spill in Alaska.

Souter was a proudly old-fashioned kind of justice. He wrote his opinions in long hand, disdained computers, and when he was asked about cameras in the courtroom, he said that if cameras came into the Supreme Court, they would have to roll over his dead body.

Unlike his colleagues, Souter did not write books of give lots of speeches. He hated Washington social life and avoided it entirely. A lifelong bachelor, he was monastic in his court work, and anxious to drive home to New Hampshire and his friends there when the court term ended each June.

He was, said the late Justice Harry Blackman, perhaps the only one of us who is normal. That may be why he decided, after nearly two decades on the Supreme Court, to leave the city he loathed and go back to the state he loves.

Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Corrected: May 4, 2009 at 11:55 AM EDT
In some broadcasts, we referred to a ruling concerning Exxon's oil spill "in Prudhoe Bay, Alaska." The spill was actually in Prince William Sound.
Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.