Souter Resignation: A Win for Obama

It is true that the GOP will be able to raise money off the inevitable nomination battle over Souter's successor. But unless President Obama names former 1960s radical Bill Ayers to the seat, he and his party have the better hand. Here's why.

John Sununu, the conservative former governor of Souter's home state of New Hampshire, called the nomination "a home run" when Bush picked Souter in 1990.

The quiet New Englander turned out to be a terrible disappointment to Republicans. Among other things, he voted to uphold abortion rights and dissented from the 2001 decision that put George W. Bush in the White House.

Yet Souter has not been a total loss to conservatives. "We disagree on methodology but at times he has reached reasonable results," says Robert Alt, deputy director of the legal center at the conservative Heritage Foundation.

He cites as examples Souter's support for reducing punitive damages Exxon Mobil was ordered to pay Alaskans after the Exxon Valdez oil spill, and for strict standards of review aimed at making it harder for people to bring frivolous lawsuits.

A number of people on lists to succeed Souter are more liberal than he is – a prospect that alarms conservatives even as they're glad to see Souter go.

Ed Whelan, at National Review, calls Seventh Circuit judge Diane Wood "a fervent activist" with "extreme positions" on abortion. He faults solicitor general and former Harvard Law School dean Elena Kagan for leading opposition to military recruitment on law school campuses. He says Second Circuit Judge Sonia Sotomayor tried to "bury" claims of reverse discrimination by white firefighters in New Haven, a case currently before the Supreme Court.

Whelan also has plenty to say about various men being mentioned as contenders, but the odds are steep that one of them will be named. Obama is widely expected to double the female population on the court by choosing a woman.

Besides ideology, the other potential game-changers are personality and background. Souter is cerebral and self-contained, a man who reads and climbs mountains for fun. What if Obama named a backslapping, arm-grabbing extrovert, maybe someone who has cut deals, made compromises and influenced outcomes?

"You can imagine if somebody with the qualities of being able to draw people in and build coalitions were named, you might actually see the court move in a liberal direction" even if the ideological lineup is similar, says Garrett Epps, a constitutional law professor at the University of Baltimore.

Epps says the idea has taken hold in the last 25 years that Supreme Court nominees must be sitting judges. "Historically, that's nuts," he says, and ticks off what past justices were doing when they were named: John Marshall was secretary of state, Earl Warren was governor of California, Hugo Black was in the Senate, and Lewis Powell was a private lawyer.

"Now you have nine former appellate judges. They sit in their chambers and write and send memos back and forth," Epps says. More diversity of background, he says, would shake up the way the court thinks, writes and reaches conclusions.

Republicans aren't likely to escape the "party of no" label on this one.

It's a given that any Obama nominee is going to inflame Christian conservatives on culture war issues such as abortion and gay rights. Republican senators are going to be under pressure to fall in line with them and other conservative interest groups.

Redstate.com, a Republican blog, is urging readers to pressure Senate GOP leaders to elevate a conservative on the Judiciary Committee, which will consider the nomination. The goal is to install Alabama's Jeff Sessions – "an accomplished lawyer" and a "proven conservative" -- as ranking or senior member on the committee.

Two senators with more seniority – Utah's Orrin Hatch and Iowa's Chuck Grassley – are "old guard" and would hire non-conservative committee staffs, the blog says. They might also – horrors – keep some of former Republican Arlen Specter's staff.

Specter's defection this week from Republican to Democrat brings us to the major political disadvantage of this fight: It will highlight the narrowing base of the GOP.

The Pennsylvania senator supports legal abortion and was one of only three Republicans who backed Obama's economic recovery package. Explaining his party shift, he said the GOP in his state is increasingly conservative and he didn't want that jury judging him in a primary against a hard-right challenger.

Obama's Supreme Court nominee will set off a hue and cry over abortion, gay rights and other wedge issues. Even if the furor is kept mostly to cable, talk radio and other venues outside the Senate hearing room, it will underscore the major role of Christian conservatives in the GOP. And that certainly won't arrest the shrinkage of the last few months.

The last Republican House member from New England lost in November. Democrat Scott Murphy won a special House election last month in a GOP district in New York. And this week came Specter's switch, giving Democrats 59 votes in the Senate.

Specter has been a major player on Supreme Court nominations, and an unpredictable one. He voted against conservative Robert Bork in 1987 (he once said Bork had "the most extreme ideology of any nominee ever"). Four years later, when Anita Hill alleged that conservative nominee Clarence Thomas had sexually harassed her, Specter was her chief antagonist on the Judiciary Committee and at one point accused her of "flat-out perjury."

With an election and maybe even a Democratic primary challenge from the left looming in 2010, it's hard to imagine Specter voting against an Obama nominee. And even harder to imagine Republicans getting enough votes to block one.