I'll leave the detailed assessments of David Souter's record as an associate justice to others. For now, let's get to post-Souter politics. That's the fun part.
If history is a guide, it will probably be something like five or six weeks before President Obama puts forward his choice. And when he does, well, a supreme court nomination is often a moment of the highest drama in America. The constituencies on both sides, especially with regard to social issues, fight tooth and nail. The nominee's writings back to college are combed for signs of apostasy or dangerous radicalism, depending on who's doing the looking. Senators get to preen as they do on few other occasions.
So it's a huge deal. But oddly, in this particular case, there might not be that much at stake. Why? Because Obama will be replacing a member of the court's liberal bloc with (presumably) another liberal. There are sometimes surprises. Souter of course is (was?) a Republican nominated by George Bush Sr, and he turned out to be a liberal. But that was pretty much a one-off as far as recent history goes.
In other words, this is unlikely to alter the ideological balance of the high court. On Roe v Wade, a tenuous five-member majority supports the right to choose. We have to assume the new guy or gal will assume his or her role in that majority. Otherwise, on most other hot-button issues the court features a five-to-four conservative majority now, with George Bush's two appointments ending an old liberal advantage.
So if Antonin Scalia or Clarence Thomas were to retire, and Obama got to replace one of them, that would be a very big deal. But that's a virtual impossibility while we have a Democratic president, because they wouldn't leave knowing they'd be replaced by a liberal.
Souter is 69, so Obama can replace him with a 45- or 50-year-old (court appointments are for life, or as long as the person wants). So in that sense Obama can buy some long-term ideological insurance. But he can't change the balance.
And he may never have the chance to, even if he's president for eight years. The older members of the court are the liberals – John Paul Stevens, Ruth Bader Ginsburg and Steven Breyer.
Okay, now, let's get to the Senate and the parties. Even with all I wrote above being true, this could still be a donnybrook. There are dozens or hundreds of people in Washington on both sides who live for this day. Millions of fund-raising dollars are brought in, on both sides, through court-related direct-mail campaigns designed to alarm constituents. A supreme court battle is a small industry.
The most fascinating aspect of this is that, at a moment at which a lot of people are speculating about whether the GOP has gone crazy, the coming court battle will bring the social-issue right to the foreground. Religious right figures will be on the talk shows, and rightwing ministers will fulminate.
This could, then, be one more occasion on which the American right looks to regular people like it's lost its marbles. Say Obama nominates a moderate-to-liberal jurist who's obviously well qualified – someone, in sum, who doesn't look controversial to your average middle-of-the-road American. And say religious right figures try to paint this person as a latter-day William Kunstler (the famous American radical lawyer). If Obama and the Democrats play such a scenario well, they can push the GOP even closer to the edge.
For example: a nominee needs only 51 votes in the Senate for confirmation, not the 60 we often speak of. But a nominee can be filibustered. Will the GOP, which obviously doesn't have the votes to block a nominee, try to filibuster?
No nomination for associate justice (that's what we call the eight court members who aren't the chief justice) has ever been filibustered. In the 1960s, Republicans successfully filibustered a man Lyndon Johnson tried to elevate from associate justice to chief justice. But neither side has ever filibustered an associate justice. It's worth keeping in mind.
I and many others have been writing lately on the general question of whether the GOP these days is appealing only to its hard-shell base, or whether it's even trying to persuade others. So maybe there's a lot at stake after all, but less for the court than for the Republican party.
