Todd Zwillich: Our friend Nate Persily was at the Supreme Court on Wednesday watching the proceedings. He’s a professor of law and political science at Columbia University here in New York City and a frequent guest on our show. And Nate, you called it. You wrote a dispatch after Wednesday’s arguments that Souter looked like he might be leaving the court. Did you see it in his eyes?
Nate Persily: Actually, he seemed particularly frustrated by that argument. This was a constitutional challenge to the Voting Rights Act, a very big case. And you got the sense that he was regretting that this was the parting blow, that this was going to be the case that he was going to have to leave on, and that he was going to have to write a dissent in this case. It sort of was emblematic to him of the rightward shift in the court.
Daljit Dhaliwal: And that was about article five that was being contested on the Voting Rights Act, we talked about that the other day on The Takeaway, so that’s still yet to be decided.
NP:Right. But it was pretty clear from the oral argument that five more conservative justices were going to strike down the Voting Rights Act, which is a very big deal for them to do, and that Justice Souter would probably dissent.
TZ:Alright. So for people who haven’t followed the court very closely, probably haven’t heard much about the court, what role did Souter play? He wasn’t frequently a swing vote. What was his primary role there?
NP:Well, Justice Souter is the most recent in a long line of Republican appointees who then surprised their appointers by being liberal. So he frequently joined the three other liberal justices on the court to form a four-justice dissenting block, I guess is the way to put it. And the most salient issue that came before him in the early years was obviously, these abortion cases, where he surprised many be upholding the core aspects of Roe vs. Wade. He did join conservatives in saying that the government doesn’t need to fund abortions. But for the most part on issues of civil rights, on issues of equal protection, voting rights, other things that he was pretty solidly with the liberal bloc.
TZ:And wound up being infuriating to the right on that basis because some people saw him as a turncoat. Even though Supreme Court justices, by definition, are supposed to be immunized from this kind of politics, he was seen as a turncoat for many of the right. And some people, at least that I’ve talked to, believe that that was part of what was behind the reaction to appoint such conservatives later, to make sure it was someone who was going to stick to the line and not give any surprises. People like Roberts and Alito.
NP:I think that’s definitely right. I think that Souter has become a symbol of what happens when a president doesn’t vet a justice sufficiently. There’s a chance that they could significantly change from what was expected.
TZ:Alright. Most people don’t follow the court too terribly closely, but we have a piece of sound here from David Souter that most people will probably recognize, even if they don’t follow the court all that closely.David Souter on tape: There is no genuinely subjective indication beyond what can be viewed as either a dimple or a hanging chad. And there’s a general rule being applied in a given county that there is an objective intent, or an intent on an objective standard will be inferred, and that objective rule varies, we’re told, from county to county.
TZ:Dimples and hanging chads. Bush v. Gore.
NP:That’s right. He was one the dissenters in Bush v. Gore. And his dissent emphasized that the court never should have gotten involved at all in the controversy, that it was something that threatened the impartiality of the judiciary and it was the kind of thing that the political branches should solve.
TZ:So Souter is a liberal. Ostensibly Barack Obama would want to name somebody of like ideological thinking. So we’re not likely to see any ideological shift on the court. Is this bloc likely to stay the same? Let me ask it this way: What prevents Barack Obama from falling into the same trap that George H.W. Bush did when he appointed Souter and wound up with somebody that voted against his ideology most of the time?
NP:There’s always a chance that a justice will evolve over time on the Supreme Court, but I think Barack Obama, a constitutional law professor, is very acquainted with the nominees that he might be putting forward, and I think that’s unlikely.
TZ:You got any names for us? Potential replacements?
NP:Well all the names being kicked around are the ones that people are thinking about: Elena Kagan, who’s the solicitor general former dean of Harvard Law School; Kathleen Sullivan, former dean of Stanford Law School; Diane Wood on the 7th Circuit; Sonia Sotomayor on the 2nd Circuit are all names that people are pointing to.
DD:A lot of women this time.
DD:What do some of them bring to the table? Anything jump out at you in particular?
NP:I wouldn’t be surprised, for example, if he chooses someone who is not a judge right now. That might be a sort of significant move for him. That’s why deans of the law schools are possibilities. Some people mentioned Deval Patrick the governor of Massachusetts who also was a attorney in the Civil Rights Division, led the Civil Rights Division under President Clinton. Each one of them has a track record of supporting, kind of…I wouldn’t call them liberals, I mean, because there isn’t, in the historic sense there isn’t even true liberals on the court in the nation of Earl Warren or Justice Brennan or Justice Marshall, but they certainly are more to the left than the conservative members there. And I think that each one of them is a pretty predictable vote to go with the four liberal justices.
TZ:Around where I work on Capital Hill, nobody can seem to look beyond, forget the beltway, they can’t even look beyond the hill itself. And people throw around the name of Dianne Feinstein, member of the Judiciary Committee from California.
NP:That’s a possibility, but I would think that’s unlikely. Remember one of the other questions is how old they are. He wants appoint someone who’s relatively young so that life appointment really means something.
TZ:So you said a justice can evolve, and certainly Souter evolved. That’s a nice way of saying “turncoat,” as someone on the right might say.
DD:They’re entitled to change their mind.
TZ:And that’s the question I have: How and why? Has there ever been any indication of his evolution, why he changed? Or was he hiding his true opinions when he was in confirmation hearings?
NP:It’s a little bit of both. I think that he was hiding some of his, I don’t know how actively hiding, but he was a stealth justice. People knew very little about him. It made him confirmable and that’s why George Bush the first wanted him as a nominee.
DD:And how do you think that this is going to play outside of the beltway? Is this a story that sort of the average American is going to follow? Do they care? Is it something that they would be concerned about right now?
NP:Supreme Court battles are less about the individual person, although sometimes with Judge Bork or Justice Thomas they could be, than they are about the salience they bring to the issues that the courts decide, particularly abortion, issues dealing with race, other kinds of civil rights issues. And that’s what happens when you have these fights over Supreme Court nominations, it focus people on constitutional issues. Gay rights is also another area.
TZ:We’ve been asking listeners about who they think should be next in the court if there’s an opening and our listeners have been weighing in on this. So listen to this.Listener: Hi, my name is Mary. I’m calling from New York. I am just thrilled that Obama is the one that’s picking the new Supreme Court justice and not John McCain, which would have changed a lot in America. I trust his choice.
TZ:Indeed, but not a surprise that Obama’s going to get a least one pick and they expect him probably to get more.
NP:I think it’s likely that he’s going to get three picks. I think justice Ginsberg and Justice Stevens are likely to retire in the next three years. At least those two.
TZ:What’s coming up this summer, then, or at some point if Justice Souter retires in June as is being widely reported, is a confirmation hearing, confirmation process in the senate. Democrats are close to that magical 60-vote number because Arlen Specter, who’s former chairman of Judiciary Committee is switching to the Democratic side. Even if the Democrats do have 60, there has not been a Supreme Court nomination process in many years that hasn’t been a big, red meat, politically divisive issue. Think of things like the nuclear option, parties going to the mat over this stuff. Is that still likely to happen even if there are 60 votes on Obama’s side?
NP:Well it depends who he nominates. I think that the likelihood that the Republicans will try to obstruct or try to vote against a nominee depends on how liberal that person is.
TZ:But they also raise a lot of money off of it. Forget about the votes, they can get their base ginned up over it.
NP:Well that’s right. This is an opportunity to take a stand on all the kinds of moral values issues that have often divided the parties and are electorally significant.