Who Will Replace Souter? 10 Known Knowns

U.S. Supreme Court Justice David Souter, smiles after speaking during a dedication ceremony at the State Supreme Courthouse in Concord, N.H., Wednesday, July 9, 2008. Souter plans to retire at the end of the current court term, NPR reported April 30, 2009. AP Photo/Jim Cole

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.
Here's an idea; Let's go find the eight people in America who bet on "Mine That Bird" to win the Kentucky Derby and ask to tell us who President Obama will choose to replace retiring Supreme Court Justice David H. Souter.

The crapshoot that was the 135th Derby is easily the equivalent of the know-nothing crapshoot of speculation about whom the next Justice will be.

The people who know who the pick is going to be aren't talking and the people who are talking (people like me) don't know. Don't forget that one essential truth as you are reading, listening or watching to coverage of the lead-up to the nomination (whenever that will be).

In the meantime, to paraphrase Donald Rumsfeld, let's briefly go over the few "known facts" to offer a few confident predictions.

1. There will be a huge confirmation battle no matter whom the President nominates and it will have virtually nothing to do with the academic credentials or intellectual abilities of the nominee. Conservative groups were already railing Friday against what they're calling the current "liberal, activist" Supreme Court (what say you about that, Messrs. Roberts, Alito, Scalia, Thomas and Kennedy?), so it' clear where this will go even if the President selects, as some suggest he will, a "on-ideologue" (whatever that means).

2. The White House will factor into its selection the virtual certainty that there will be one or even two more opportunities during the next four years to replace justices on the Court. This will enable the President to reassure the constituency that "loses" this round (i.e. Hispanics, if a woman is chosen) that their turn will come soon enough. This will likely reduce intra-party friction even as it complicates the "bank shot" for the President.

3. There is a material difference between being a political conservative and a legal conservative, just as there is a difference between a political liberal and a legal one. Justice Souter was despised on the right because he wasn't a political conservative - though he was a legal one. Justice Scalia is adored by the right because he is a political conservative, even though he isn't always a legal one. Be careful of these sorts of convenient but inaccurate labels when the nominee is announced.

4. Unless the President suddenly loses his mind, the White House will select someone who is extraordinarily bright, hard-working, honest, and dedicated to public service. The current crop of candidates is very deep and talented - which happens when one party goes 15 years between Supreme Court appointments. In other words, this isn't "Celebrity Apprentice," and it will be very hard for the White House to screw things up.

5. No matter whom the President selects, the Court's ideological make-up will not change dramatically. In fact it is unlikely to change at all. The White House is going to select a "moderate-liberal" jurist to replace a "moderate liberal" jurist, and it will be a wash just as the transfer from conservative Chief Justice William H. Rehnquist to conservative Chief Justice John G. Roberts, Jr. was a wash a few years ago. The Court currently is, and will remain post-Souter (short-term, anyway), a conservative-moderate Court with Justice Anthony M. Kennedy as its pivot. We'll still see those familiar 5-4 rulings on contentious issues.

6. To illustrate that point, the Court will have turned over by fully one-third in just the past four years. Gone are Justices O'Connor and Souter and Chief Justice Rehnquist. In their place are Justice Alito, Chief Justice Roberts and the Obama appointee. Unless that appointee is Michael Moore (and it won't be), the Court will be at least as conservative in 2010 as it was in 2005. And this will remain so if liberal Justices Ruth Bader Ginsburg and John Paul Stevens retire before the President's first term expires.

7. American people will be better able than ever before to gauge for themselves the nominee's experience and philosophy. Even more so than in January 2006, when Justice Alito was confirmed, our ability to research and share information via the Internet means that no one who really cares about the process - and the result - is excused from being ignorant or duped. Don't just read or watch what analysts and commentators say about this person, do a little research yourself!

8. The nominee will invariably fail to adequately answer a great many good questions during his or her confirmation hearing. This time, the Republicans will howl that the answers are too incomplete and that the candidate is hiding something - precisely as the Democrats howled that nominees Roberts and Alito weren't leveling with them during their confirmation hearings a few years ago.

9. Accordingly, to be true to its theme of governmental "transparency," the White House should encourage its nominee to be expansive with his or her answers during the confirmation hearing. No more stone-walling. Even the so-called "Ginsburg Rule" (by which subsequent nominees have refused to specifically answer questions about legal issues and topics which they contend may come before them as justices) ought to be limited. Someone, some party, has to break the destructive cycle by which these life-tenured people get to skirt candor in the name of discretion and expedience.

10. In the end, no matter how loud the howls inside the Committee and in the echo chambers beyond, the nominee will be approved by the Senate and become the next Justice of the United States Supreme Court. We all know how this story ends. We just have to sit through all the chapters to get there.

My pick: Michigan Gov. Jennifer Granholm. Woman? Check. Not a sitting judge? Check. Smart? Check. Consensus-builder? Check. Hard for Republicans to bork? Check. Then again, what do I know? I picked "I Want Revenge" to win the Derby. He didn't even make it into the race.
By Andrew Cohen
  • Andrew Cohen

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