It seems that Justice Souter has yet to hire any clerks for the October 2009 term of the U.S. Supreme Court. Given that and Justice Ginsburg’s recent hint about an impending vacancy on the Court, it may not be premature to speculate on the Court’s direction should Souter resign.
It would be premature to guess about Obama’s replacement for Souter, except to venture that the person he picks will be of the Left. But, thanks to SCOTUSblog‘s analysis of Court rulings for the October 2008 term to date (updated through 04/30/09), it is possible to gauge the effect of Souter’s departure on the Court’s ideological balance. Compare Souter’s record with that of his “liberal” peers in disagreements with the Court’s more conservative members*:
|In disagreement, non-unanimous cases|
Souter, as it turns out, is more “liberal” than Ginsburg and Breyer, as measured by the frequency of disagreements with the Court’s more conservative wing. (I admit surprise at finding Breyer close to the center with Kennedy — for the Court’s current term, at least. UPDATE: More accurately, Kennedy is left-of-center, along with Breyer. See UPDATE 2 at this post.)
So, if Souter retires at the end of the current term, his replacement is unlikely to shift the Court’s ideological balance — in the near future. Over the longer run, however, the appointment of a relatively young, Left-wing justice would shift the Court’s balance, if that appointee outlasts two or three of the Court’s conservatives, who are then replaced by persons of the Left. (UPDATE: The long run may come sooner rather than later. See UPDATE 2 at this post.)
Furthermore, Obama probably will have the opportunity in his current term of office to appoint two more relatively young, Left-wing justices (replacements for Stevens and Ginsburg), who could outlast all of the Court’s conservatives. That would set the stage for the creation of a solidly Left-wing Court, if Democrats continue to hold the White House and Republicans are unable or unwilling to block the sitting president’s Court nominees.
Incidentally — but perhaps germanely — Republican presidents have fared poorly when it comes to picking justices. Of the 18 appointments by Republican presidents since 1953, seven proved to be closet “liberals” or centrists: Warren, Brennan, Blackmun, Stevens, Kennedy, O’Connor, and Souter. Democrats, on the other hand, have appointed five justices since 1953, only one of whom (White) revealed himself as somewhat conservative.
As for the present Court, Republican presidents selected seven members; a Democrat (Clinton) chose the other two. Clinton’s picks have been reliably “liberal.” The GOP picks break down like this: four conservatives, one middle-of-the-roader, and two “liberals.” Et tu, Brute?
I take the difference between Republicans and Democrats to be symptomatic of the way the parties play the game of politics. Republicans are prone to misguided even-handedness. For Democrats, winning is everything.
* What passes today for liberalism is so illiberal that I can no longer use the word without enclosing it in quotation marks, as a short way of saying “so-called liberal.” Many “liberals,” knowing that their appellation is tainted, now prefer “progressive,” though “regressive” is a better description of the “liberal-progressive” philosophy. Mike Rappaport of The Right Coast has more to say about the modern meaning of “liberal.”