Souter, 69, joined the court 18 years ago. He was nominated by George H.W. Bush, but he's been a disappointment to those who expected him to be a conservative, tending to vote with the more liberal jurists.So I wouldn't expect Souter's retirement to alter the balance significantly. Many of Obama's supporters said that the prospect of Supreme Court nominations was an important factor for them when deciding how to vote last year, but Obama's choice to fill this particular vacancy is not likely to differ from Souter.
I say "not likely" because Supreme Court nominees sometimes turn out to be the opposite of what presidents expect, and Souter is a good example.
"Justice Souter was a little–known New Hampshire jurist when Republican President George H.W. Bush elevated him to the Supreme Court in 1990," write Jesse Bravin and Evan Perez in the Wall Street Journal. "Influential New Hampshire Republicans vouched for his credentials, but he soon proved a disappointment to conservatives hungry for a reversal of precedents they opposed."
That underscores another problem with Supreme Court nominations. It's hard to anticipate who will be nominated. Souter, as the Wall Street Journal observes, was not well known when he was chosen for the Supreme Court. Obama could pick someone who is well known — Thurgood Marshall, for example, had established a legal reputation for successfully arguing the case in Brown v. Board of Education before the Supreme Court long before Lyndon Johnson chose him to be a justice.
But the pool of potential justices is virtually unlimited. The Constitution sets no qualifications for Supreme Court service, which means a president may nominate anyone, but the nominee must be approved by the Senate. It is reasonable to assume, though, that, with the majority of senators being members of Obama's party, his nominee will be confirmed — unless that nominee brings considerable baggage, like Robert Bork did in 1987.
It has long been speculated that Obama would pick a woman when given his first opportunity to fill a vacancy on the Supreme Court. For more than a decade, there were two women on the Supreme Court, but George W. Bush did not replace Sandra Day O'Connor with another woman when she retired, so there has been only one woman (Ruth Bader Ginsburg) in the last few years.
And there have been rumors in recent months that the 76–year–old Ginsburg, who was treated for colorectal cancer a decade ago and then was treated for pancreatic cancer in February, might be retiring soon.
So that might raise the pressure to nominate a woman.
But if Obama becomes fixated on picking a woman, doesn't that increase the possibility that he will wind up picking someone who doesn't share his beliefs simply in the interest of satisfying an arbitrary gender requirement? I mean, he could wind up giving the court a closet Ann Coulter.
Even though it's practically impossible to predict who will be nominated by a president, speculation has already begun and will increase in the days ahead. Salon.com reposted Justin Jouvenal's "Ten picks for Obama's Supreme Court," which originally was posted shortly after the election and focused on the assumption that up to three justices (including Souter) might retire during Obama's term in office.
The piece may need to be revised — since it was first posted last November, as Salon points out, "several of the individuals named as possible justices have been tapped for jobs in the Obama administration." But that doesn't necessarily mean that Obama won't consider them for elevation to the Supreme Court.
At this stage, it's really pointless to hazard a guess about the identity of Obama's nominee. Souter will retire at the end of the current judicial term, and the next one won't begin until October so Obama has some time to consider his prospects.
About the only thing that can be said with any certainty, though, is that it is one more item on Obama's already crowded plate.
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