Big Decisions

With David Souter Leaving, What Type of Supreme Court Justice Will Obama Pick?


When Justice David Souter was appointed to the Supreme Court by the first George Bush, conservatives applauded, thinking they scored a life-long ally on the nation’s top bench. They were wrong. Souter became one of the liberal voices on the court. Some blame Souter’s lack of experience (he was a federal judge for only two months before Bush’s appointment) for his about-face; others say he never even had time to form a liberal or conservative slant in that time. Some blame Justice Antonin Scalia for driving a wedge between conservative justices, and failing to lead his right-leaning peers into agreement. Some don’t care — and were glad to have Souter’s leftist viewpoint. But Souter is leaving now, after 19 years on the job, meaning President Barack Obama will have to speedily appoint a new justice in his first year in office.

(The second George Bush had to wait until well into his second term, but he got to appoint two justices.)

It’s Obama taking office that will be credited with Souter’s departure; he didn’t want a conservative president to replace him, all but guaranteeing a conservative majority.

Obama has said he won’t give Supreme Court candidate a “litmus test” on social issues. When it comes to abortion, for instance, Obama says he believes the Court ruled correctly in Roe v. Wade, but he won’t require an appointee to side with him. Is that just political speak to allow Obama to appeal to conservatives while secretly knowing he would never put somebody on the court that could overrule that decision? Or does Obama really want to keep with this “reaching across the aisle” business?

And if Obama has no litmus test on social issues, what does that mean about the appointment of a justice who doesn’t believe in full equality for gay people? As the president has already demonstrated, GLBT issues are not on the top of his list. But should they at least be a consideration when it comes to a new justice? Or if not a consideration, a deal breaker?