Like a Gold Rush town in California, the infrastructure of the U.S. Supreme Court confirmation industry went up almost overnight after Justice David Souter’s May 1 announcement that he plans to retire in late June.
Last week interest groups on all sides were gearing up for battle, even without a name to fight over. Ethnic and gender politics are under way, as groups pressure President Barack Obama to nominate someone from a rainbow of nonwhite-male possibilities. One Hispanic short-lister, Judge Sonia Sotomayor of the U.S. Court of Appeals for the 2d Circuit, has already been torn up and put back together by dueling commentators who talk about her demeanor as much as her decisions. Controversial YouTube clips of comments she made at Duke Law School in 2005 about the role of appeals courts as policymakers have emerged.
Meanwhile, Massachusetts Governor Deval Patrick, another potential nominee, appeared to take himself out of the running in a thoroughly modern way — with a comment on a Bay State blog. “I am honored to be included in some people’s short list of potential Supreme Court Justice nominees,” Patrick wrote on the Blue Mass Group blog founded by David Kravitz, a former U.S. Supreme Court clerk. “I will serve out my first term and run for re-election in 2010.”
It’s all happening at cyberspeed, and by the end of this week at least the suspense may be over. Senior White House aides are winnowing the list quickly, and potential candidates will be spirited into the Oval Office for private chats with Obama. An announcement could come soon. While we wait, here is a collection of items dealing with the fallout from Souter’s announcement.
WITH SOUTER GONE, WILL CAMERAS ROLL IN?
In 1996, Justice David Souter said that, if a broadcast camera is ever allowed in the Supreme Court, “it’s going to roll over my dead body.” Souter’s retirement will erase that ugly scenario, without any fatalities involved. But will Souter’s departure bring the day closer when Supreme Court arguments will be broadcast? “We wouldn’t be optimistic,” said C-SPAN vice-president Bruce Collins, a longtime advocate for camera access. “When he said ‘over my dead body,’ he wasn’t alone. There are others who feel the same way.” Collins noted that Justice Clarence Thomas recently told a congressional committee that the issue had been discussed many times, with no change in the justices’ overall disapproval. The two newest members of the Court, Chief Justice John Roberts Jr. and Samuel Alito Jr., have gone negative on cameras after earlier signs of considering it. Only justices John Paul Stevens and Ruth Bader Ginsburg have shown any glimmer of support, and those signs were tepid or conditioned on gavel-to-gavel broadcast — something that would be impossible to mandate.
“This is not a 5-4 decision,” said Collins. “You need a leader who really wants it, or else unanimity.”
Former ABC News Supreme Court correspondent Tim O’Brien is more hopeful, with the two most vocal opponents of cameras — the late William Rehnquist and soon Souter — off the Court. “It’s so ludicrous not to have cameras there,” said O’Brien, who teaches law at Nova Southeastern University Shepard Broad Law Center in Florida. “Even if only one in a hundred of our fellow citizens were to watch, that would be 3 million of us who stand to be enlightened and enriched.”
BLACK LAWYERS WEIGH IN
Rodney Moore, president of the National Bar Association, was in Washington last week, but not to lobby for appointment of a black justice. “President Obama inherited a Supreme Court that has suffered from generations of exclusion of various groups,” said Moore, a partner in Adorno & Yoss’ Atlanta office, during a break in an association health care law summit. “It’s going to be difficult to remedy all that history in one selection.”
His group, the largest association of black lawyers, won’t endorse anyone just because of his or her race, Moore said. Justice Clarence Thomas, the current Court’s only black justice, “really cemented our view that, while race and gender are important, it’s more important that the nominee share values that are uniquely American,” Moore said. The association will urge the president to “look outside the federal courts” for possible nominees, and consider state court judges, law professors and public defenders, said Moore.
TIME FOR A HISPANIC
The Hispanic National Bar Association (HNBA), which has been making the case for the nomination of the first Hispanic to the Supreme Court for more than 20 years, is hopeful that Obama will finally make it happen. “There is an ample pool of qualified Latino lawyers, jurists and legal scholars of exemplary character and integrity who are well-equipped to serve,” said association president Ramona Romero in a statement.
Association leaders received a previously scheduled briefing from White House officials on May 7. “I came away with a better feeling that a Hispanic is getting serious consideration than I’ve ever had,” said Carlos Ortiz, the association’s longtime advocate for this cause, who is heading HNBA’s Supreme Court committee. No names were discussed. The association represents more than 100,000 lawyers, judges, academics and law students.
O’CONNOR’S FELLOW RETIREE
Ever since she retired in January 2006, Sandra Day O’Connor has been the only living former justice. Souter will join that exclusive club this summer but won’t follow a similar path. O’Connor, 79, is busier than ever and keeps an office and a clerk at the Supreme Court. Chambers for retired justices are available at the nearby Thurgood Marshall judiciary building, but some retired justices have opted to stay at the Supreme Court, closer to the action and to longtime colleagues.
Whether Souter will keep any office in Washington — a city he famously dislikes — is unclear. During the summer, Souter has used office space in the federal courthouse in Concord, N.H., not far from his Weare, N.H., home.
O’Connor offered fond words about Souter in a statement issued by the Court. “Justice Souter is a superb human being. He is brilliant, witty, wise, and wonderful. He will be greatly missed.”
Courtside is an occasional column on the Supreme Court. Tony Mauro can be contacted at email@example.com.