Souter Said to Be Leaving Court in June

WASHINGTON — Justice David H. Souter plans to retire at the end of the term in June, giving President Obama his first appointment to the Supreme Court, four people informed about the decision said Thursday night.

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Justice David H. Souter in Concord, N.H., in July 2008. More Photos »
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Justice Souter, who was appointed in 1990 by a Republican president, the first George Bush, but became one of the most reliable members of the court’s liberal wing, has grown increasingly sour on Washington and intends to return to his home state, New Hampshire, according to the people briefed on his plans. One official said the decision might be announced as early as Friday.

The departure will open the first seat for a Democratic president to fill in 15 years and could prove a test of Mr. Obama’s plans for reshaping the nation’s judiciary. Confirmation battles for the Supreme Court in recent years have proved to be intensely partisan and divisive moments in Washington, but Mr. Obama has more leeway than his predecessors because his party holds such a strong majority in the Senate.

Replacing Justice Souter with a liberal would not change the basic makeup of the court, where he and three other justices hold down the left wing against a conservative caucus of four justices. Justice Anthony Kennedy, a moderate Republican appointee, often provides the swing vote that controls important decisions.

While the White House Counsel’s office prepared privately to step up its efforts to search for a replacement, Mr. Obama said through a spokesman on Friday that he had no direct knowledge of Mr. Souter’s plans.

“The President has not received a formal communication from Justice Souter,” Bill Burton, a White House spokesman, said Friday morning, “and he deserves the right to make his own announcement.”

But Mr. Obama and his team have been thinking for a long time about whom he might put on the court. Among the people whose names have been floated in recent months are Elena Kagan, whom Mr. Obama named as his solicitor general, and two federal appeals court judges, Sonia Sotomayor and Diane Pamela Wood.

Justice Souter, 69, has been the subject of intense speculation in recent weeks because his discontent in Washington has been no secret. He was the only justice who had not hired clerks for the fall term.

Friends said Thursday evening that he had often spoken of his intentions to be the court’s first retirement if Mr. Obama won the election last fall. He told friends he looked forward to returning to New Hampshire while he was young enough to enjoy climbing mountains and other outdoor activities.

One senior administration official said Mr. Obama’s aides had gotten a hint of Mr. Souter’s plans, which were first reported by National Public Radio. “He indicated he may a while ago,” the official said. But many senior officials contacted Thursday night said they had not yet been informed.

Mr. Obama is getting his first court opening early in his tenure. President George W. Bush had no seats to fill until deep into his second term, when he appointed Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., bolstering the conservative side of the court.

While Democrats will be happy to have a chance to put another liberal on the court, a confirmation battle could prove to be one more challenge for a president already engaged on multiple fronts to pass health care, energy and other legislation. Mr. Obama would need to name a nominee early enough for the Senate to hold hearings and vote by the beginning of October to fill the seat in time for the next term.

During a campaign debate last fall, Mr. Obama said the selection of a new justice would be “one of the most consequential decisions of the next president.” He said he would look for judges who had a strong judicial record and “who hopefully have a sense of what real-world folks are going through.”

On the always explosive issue of abortion, he said he would “not provide a litmus test,” but added, “I am somebody who believes that Roe versus Wade was rightly decided.”

Justice Souter was confirmed as the 105th justice on Oct. 2, 1990. He replaced Justice William J. Brennan Jr., the court’s liberal leader, who abruptly retired on July 20, 1990, at age 84 after suffering a stroke.

The nominee was little known even in Washington legal circles when the president introduced him to the country. He was a 50-year-old Harvard Law School graduate and former Rhodes scholar who had been confirmed to a federal judgeship only two months earlier and had barely moved into his chambers at the federal appeals court in Boston. For 12 years before that, he had been a state judge in New Hampshire.

Mr. Souter became a favorite of liberals during his tenure and a source of enormous frustration to conservatives who believe he betrayed them.

During his confirmation hearing, Judge Souter said that he had no agenda on abortion and that he had not made a decision on how he would vote if the issue of Roe v. Wade was put before him.

A major abortion case, Planned Parenthood v. Casey, arrived at the court in his second term and was argued on April 22, 1992. It was widely expected that Roe would be formally or functionally overturned because by then another abortion rights supporter, Justice Thurgood Marshall, had retired, and he was replaced by Justice Clarence Thomas.

But the result was just the opposite. Justice Souter, joined by two other Republican-appointed justices, Sandra Day O’Connor and Anthony M. Kennedy, who had earlier both expressed strong doubts about Roe, collaborated to produce a highly unusual joint opinion that reaffirmed the constitutional right to abortion. With Justices Harry A. Blackmun and John Paul Stevens joining the central parts of the joint opinion, the vote was 5 to 4.

Justice Souter was in the minority, and a bitter dissenter, in the case of Bush v. Gore, the 5-to-4 decision that ended the disputed Florida recount in the 2000 presidential election and effectively declared George W. Bush the winner.

“There is no justification for denying the state the opportunity to try to count all disputed ballots now,” he wrote.

Senator Patrick J. Leahy, Democrat of Vermont and the chairman of the Senate Judiciary Committee, praised the justice on Thursday night. “Justice Souter is a first-rate legal talent,” Mr. Leahy said, “and I am very proud of him.” LINK...