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SCOTUS: Souter’s Retirement Opens Many Possible Doors

Justice Souter’s retirement has been rumored for weeks — a whisper that he’d failed to hire any clerks for the Fall term. But confirmation was hard to come by for anyone chasing down the rumor.

It broke wide open late yesterday. No official confirmation as yet, but no retractions either.

As Tom Goldstein of SCOTUSblog points out, this may have been a surprise for Senate Judiciary committee members:

At the White House (where counsel were aware and at work) and the Senate Judiciary Committee (where they were not), the pace of discussions and preparations for a successor will now increase considerably. And that is where most of the attention of the press and the public will immediately turn – forwards, rather than reflecting back on the Justice and his work. He won’t mind, but it is still too bad. Washington always angles for a leak (tonight) and a fight (this summer). This is the point at which the collegiality and insularity of the Court meet the competitiveness of the media and vindictiveness of partisan politics.

Goldstein goes on to talk about nomination possibilities and Beltway handicapping, but this hits home: that all of Washington was hoping to be on vacation and out of the muggy heat of the summer. But a SCOTUS nomination — especially one dragged out by partisan bickering — would put that on hold.

Good incentive to move the ball forward, but I’m not holding my breath.

There are a lot of names being bandied about, and there is always a surprise or two that pops up as the days drag forward. The ones with prime consideration potential include: Elana Kagan (currently Solicitor General); Sonya Sotomayor (CA2); Diane Wood (CA7); Kim Wardlaw (CA9); Kathleen Sullivan (former Stanford Law dean); Jennifer Granholm (MI governor); and Leah Ward Sears (GA Sup. Ct.).

Note that they are all women, because I think that is most likely given the current court composition.

There are any number of prime consideration points, but one which particularly stands out for consideration with me is someone with legislative experience or significant balance of powers work. There are likely to be any number of challenges on those lines in the years to come, and I’d prefer someone with grounded experience — hopefully outside DC — to add to the Court’s background for arguments in chambers. Why?

This from Jan Crawford Greenburg’s Supreme Conflict explains:

Many conservatives like Scalia believe that courts should not look to the legislative history — the debate and pronouncements about a law when the legislature approved it — when they are trying to discern its meaning years down the road. Scalia and others believe that legislative history is irrelevant and misleading, and that the words of a handful of the most vocal legislators shouldn’t carry the day. …

Other justices disagree, believing legislative history can be useful when a statutes words are unclear, as they often are.

This has been an ongoing debate for a number of years. Having experience as a foundation for argument would be beneficial here, for all sides.

A lot more to come on this, certainly.

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Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

Email: reddhedd AT firedoglake DOT com