Replacing Souter: Political Calculations
Justice Souter told the White House he plans to retire at the end of the Court's term in late June, an announcement that effectively gives the president and the Senate five months to choose a successor.
Souter is perhaps best-known as one of the most surprising justices to hold a seat on the High Court, said CBS News correspondent Wyatt Andrews.
He was appointed in 1990 by President George H.W. Bush, who was assured that Souter was a conservative, a tough law-and-order attorney general and judge in New Hampshire. But Souter quickly stunned conservatives in 1992, casting the crucial fifth vote to uphold Roe v. Wade in the landmark abortion case Planned Parenthood v. Casey.
Souter evolved into one of the court's more liberal justices, which means when he's replaced by the president and the Senate, the Court's ideological split will not change.
During the campaign, Candidate Obama specifically promised to appoint justices who are pro-abortion rights:
"So I'm committed to appointing judges who understand how our laws operate in our daily lives, judges who will uphold the core values of our constitution. That's why I won't back down when it comes to defending the freedom of women," he said.
In the search for his replacement, President Obama will face significant pressure not just to name a liberal justice, but also to appoint a woman justice.
When asked the likelihood that Souter's replacement will not be a white male, CBS News political analyst John Dickerson, the chief political correspondent for Slate.com, said, "Absolutely.
"The president will be under some pressure to name a woman," Dickerson told Early Show anchor Harry Smith. "In particular, Ruth Bader Ginsburg, the other woman on the Court, is older, and she's had a little bit of a cancer scare recently. And this would be a chance for Obama to expand the makeup of the court. It's something he talked about or hinted at when he was a candidate on the campaign trail.
Dickerson discussed some of the names that have been floated recently as prospective justices:
A Clinton appointee, she previously served on the U. S. District Court, Southern District of New York. Sotomayor is a graduate of Princeton University and Yale law School, and worked as an assistant district attorney in the New York D.A.'s office as well as in private practice.
Diane Pamela Wood, 58, a judge on the Seventh Circuit Court of Appeals in Chicago for the past 14 years and who knows Mr. Obama, is also being floated. Wood received her B.A. and J.D. degrees with honors from the University of Texas, worked in the State Department's Office of the Legal Adviser, and was an associate at Covington & Burling, litigating antitrust.
She was a professor at Georgetown University Law Center and was Associate Dean at the University of Chicago Law School, where she taught with Mr. Obama. Wood was Deputy Assistant Attorney General (1993-1995), before being appointed a judge by President Clinton.
She served in the Clinton White House after teaching at the Unversity of Chicago Law School. An associate at Williams & Connolly, Kagan is a a graduate of Princeton University and Harvard Law School, where she was supervising editor of the Harvard Law Review.
Chief Justice Leah Ward Sears, 53, was the first African-American woman to serve as Superior Court Judge in Georgia, and the first woman ever on the State Supreme Court.
She was formerly an attorney with the law firm of Alston & Bird. She holds degrees from the University of Virginia School of Law, Emory University School of Law and Cornell.
"These are names being floated, not from inside the White House but on the left and the right, the legal community is putting names out, research is being done, and these are the names we're hearing," said Dickerson.
There may also be pressure on Mr. Obama to name a young jurist. Chief Justice John Roberts was 50 when President George W. Bush appointed him; Samuel Alito was 55. The Justices they replaced, William Rehnquist and Sandra Day O'Connor, were 62 and 51, respectively, when they were each named to the High Court.
Once Souter makes an official announcement of retirement, President Obama will name a successor (most not likely not before the Court's current term ends in June), with the aim that a successor can be vetted and will pass a confirmation vote in the Senate before the Court's next term begins in October.
Confirmation hearings will be supervised by Senate Judiciary Committee Chairman Patrick Leahy, D-Vt. Following Pennsylvania Sen. Arlen Specter's defection to the Democratic Party earlier this week, the top Republican on the committee will likely be Sen. Orrin Hatch, R-Utah.
At the end of hearings, the committee will vote on the nominee and send a recommendation to the full Senate.
Including Specter's defection and two independents, Democrats now hold 59 votes in the Senate. (There is one open seat in the Senate.) It would take 60 votes to block a filibuster of a Supreme Court nominee.
But Dickerson believes, should President Obama pick a woman, it would be much harder for Republicans to scuttle or delay the nomination:
"They have a little bit of a chance. You know, the Obama administration has had some difficulties with vetting, so perhaps they would have an avenue there to go after one of these candidates.
"But [Republicans] lack the votes, and particularly if it's a woman, you have two Republican female senators who are unlikely to vote against a woman.
"So the president may likely have 60 votes by the time this nomination comes up" - with a resolution in the contested Minnesota Senate race between Al Franken and norm Coleman - "and then you would add those additional two Republican women, so the betting in the Senate is that this will go through."