A surprising announcement came late Thursday as Supreme Court Justice David Souter announced his retirement at the end of the court’s current term. A nominee of President George H.W. Bush, he was billed as a “home run” for conservatives by John Sununu, and ended up being a reliable member of the court’s liberal voting bloc. Most recently, he wrote the majority opinion in the infamous Kelo case giving local government the power to use eminent domain to take private property for a chance at greater tax revenue.
While the retirement is suprising, it nonetheless will not change the fundamental dynamic of the court. President Obama, with his emphasis on judicial empathy, will more than likely choose a liberal-leaning judge to replace the liberal-leaning Souter. As Ed Morrisey says, the impending nomination is one of high risk and little reward for Obama – a blatant judicial activist will expose his judicial philosophy as anything but centrist, and a pick not sufficiently liberal will anger his base.
Michelle Malkin has a list of three likely choices for the open spot: Elena Kagan, Sonia Sotomayor, and Diane Wood. The little I’ve read emphasizes my belief that there’s no way Obama would entertain the notion of nominating an originalist or a strict constructionist to the court. In either case, I’m not overly concerned with whomever Obama chooses, as the Supreme Court will still retain the same ideological structure it once had. Indeed, with any of the potential retirements – Ruth Bader Ginsburg, Stephen Breyer – Obama will merely be swapping out one liberal judge for another. The potential appointments do serve as a reminder of what might have been for Republicans, as the retirements would have given them an opportunity to shift the court more toward a Constitutional reading of legal matters. Instead, an extension of the status quo will have to suffice.
Update: I wholeheartedly endorse the nomination, suggested by Frank at IMAO, of Mister T to the open seat. Jibba-jabba holds no place in Constitutional law, sucka.