Assuming the reports of Justice Souter’s expected retirement at the end of the term are true, there will be much time later to reflect on Justice Souter’s important election law decisions, from his dissent in Bush v. Gore, to his views on racial and partisan gerrymandering, to his important decisions under the Voting Rights Act. (Indeed, it could well be that his final decision on the Court will be a dissent in a decision striking down section 5 of the Act as unconstitutional). I’ve even written an entire article on Justice Souter’s important campaign finance jurisprudence, and his views of political equality and political money.
But my first thoughts are about the Senate confirmation process for his successor, and the uncertainty that now arises with Senator Specter’s changing of parties. Senator Specter has been the ranking minority member of the Senate Judiciary Committee, and with his change to a Democrat, it could be Senator Grassley or someone else who takes as ranking minority member. This can affect both timing and who President Obama might choose.
On timing, it is going to take some time for the new ranking member to set things up. There could be delays in getting the vetting process open, and Democrats will be hard pressed to rush the process given that it is Specter’s departure that caused the delay. Of course, the more controversial the candidate, the more time Republicans are likely to take. (The resolution of the Franken-Coleman matter could also play into things.) But it is not a given that, even if the President nominates someone promptly, that the person will be seated the first Monday in October.
There’s another connection between Justice Souter and Senator Specter as well. Both were Northeastern liberal Republicans. Just as Senator Specter leaves the party, Justice Souter does so too, in his own way, not following a common tradition of Justices who try to retire during the term of a President of the same party who appointed the Justice. Justice Souter is one of the most liberal members of the Court; he likely feels no more at home in the Republican party now than Senator Specter.