Who will replace Souter? Locals weigh in

BY SHAWN GUDE | MAY 12, 2009 7:30 AM

It’s been more than a week since Supreme Court Associate Justice David Souter announced his retirement, but UI experts, akin to many others around the country, are still scratching their heads about whom President Obama will ultimately appoint.

“It’s a bit of a guessing game,” said Todd Pettys, who teaches constitutional law in the UI College of Law.

Any of his own speculation on specific candidates would be tantamount to repeating the same names the “mainstream press keeps mentioning,” Pettys said.

A few of the recurring names: Sonia Sotomayor, a judge in the Second Circuit Court of Appeals, would be the first Latino appointed to the Supreme Court. Two governors’ names — Deval Patrick of Massachusetts and Jennifer Granholm of Michigan — have also been mentioned. In addition, U.S. Solicitor General Elena Kagan and Seventh Circuit Court of Appeals Judge Diane Wood are also rumored to be under consideration for the post.

Souter comes from the more liberal end of the court, which is currently divided among four liberals, four conservatives, and a moderate swing voter — Associate Justice Anthony Kennedy. That ideological makeup affects the effect Obama’s selection will have on the tilt of the court.

“Obama’s substantive impact is mainly in terms of his ability to sustain the more liberal wing of the court,” political-science Associate Professor Cary Covington said. “Obama’s not going to be able to change the alignment of the court.”

Still, the president’s choice could affect what Covington labeled the “atmospherics of the court.” A vocal liberal that is “extreme in their views” would change the dynamics of the court, he said.
Pettys wouldn’t claim prescience on Obama’s choice but largely echoed Covington.

A Souter-esque justice with liberal leanings and a relatively subdued demeanor would have little impact, Pettys said.

In contrast, “if he were to find someone who had the intellectual firepower and the persuasive abilities to pull some of the conservatives or moderates over to the more liberal wing of court, he could potentially have a tremendous impact,” Petty said.

Such a justice would be the “counterpart to [Associate Justice Antonin Scalia] for the left,” Pettys said, but “I don’t know if Obama’s interested in that or not.”

In addition, while the strict balance of power isn’t likely to change, a fresh justice will “replenish and potentially reinvigorate the liberal side of the court,” Covington said. Covington sees Obama tapping a relative pragmatist, “someone who is inclined to let the elected branches of government take the lead on policy.”

Both of Iowa’s senators have recently weighed in on Obama’s selection as well. Charles Grassley, a Republican, said in a May 7 Radio Iowa interview that he doesn’t expect Obama to nominate a “bomb thrower.”

And his fellow senator, Democrat Tom Harkin, told the Des Moines Register the next day that Obama will likely pick a woman to fill Souter’s vacant seat.

Regardless of whom Obama ultimately chooses, Covington stressed the inherent gravity of the selection.

“Supreme Court justices are among the most consequential decisions presidents get to make because their effects are much longer than the presidents’ own term,” Covington said. “It’s something that presidents put a lot of thought into because it has such a long-lasting impact on their legacy.”

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