By JESS BRAVIN and EVAN PEREZ
Supreme Court Justice David Souter has disclosed plans to retire, two congressional aides briefed on the decision said, a move that would create the first vacancy on the high court for President Barack Obama to fill.
Justice Souter, 69 years old, has been a reliable member of the court's liberal wing. President Obama likely to select a candidate young enough to serve for decades, bolstering the court's aging liberal faction.
Justice Souter was a little-known New Hampshire jurist when Republican President George H.W. Bush elevated him to the Supreme Court in 1990. Influential New Hampshire Republicans vouched for his credentials, but he soon proved a disappointment to conservatives hungry for a reversal of precedents they opposed.
Joining with Justices Sandra Day O'Connor and Anthony Kennedy -- moderates appointed by President Ronald Reagan -- Justice Souter voted to limit, rather than overturn, Roe v. Wade, the 1973 opinion that recognized abortion rights. Justice Souter was no liberal trailblazer, like the jurist he succeeded, William Brennan. But as the court's center shifted to the right after Justice Thurgood Marshall's 1991 retirement, Justice Souter increasingly found himself on the court's left wing.
In 1992, just two years into his term, Justice Souter provided the fifth vote in a key abortion case, Planned Parenthood v. Casey, that served notice the court wasn't ready to overturn the 1973 Roe v. Wade decision upholding a woman's right to have an abortion.
Justice Souter was again in the majority in a 5-4 decision in 2003 when the high court endorsed the use of race in choosing students for America's top universities and the concept of racial diversity as a compelling national interest.
In recent years, he has almost invariably aligned with Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen Breyer on the defining issues, including the executive powers asserted by former President George W. Bush, the constitutionality of executing criminals for crimes short of murder, and the extent government can consider race when seeking to promote diversity.
A Souter retirement comes as little surprise. While justices Stevens, 89, and Ginsburg, 76, are older, both have said they enjoy the work and have more to contribute to the bench. Justice Ginsburg had an operation earlier this year to remove a cancerous tumor from her pancreas, but the court has said the disease was caught early and the surgery was successful.
Justice Souter has complained about life in Washington and even about aspects of the court's work, such as the numbingly technical cases involving applications of pension or benefits law. Earlier this year, he told friends he planned to retire at the end of the present term if Justices Stevens and Ginsburg decided to remain on the court for at least another term. Unlike his fellow justices, he didn't hire law clerks for the term that begins in October, and some members of his staff were inquiring about finding other jobs.
"I don't think it is a big surprise," said Bill Glahn, who once worked for Justice Souter in the New Hampshire attorney general's office and has remained friends with him since. "He's almost 70 years old. At some point, you make a choice as whether you're going to be there forever or whether you want to retire and do some of the other things you want to do, whether it's taking a walk in the morning or reading some books."
To have a new justice in place by the beginning of the court's term in October would mean conducting a Senate confirmation process. Democrats -- along with two independents -- have 59 votes in the Senate and a 60th possibly on the way. They are in a good position to push through any nomination.
The Obama administration hasn't publicly named any choices to fill a high-court vacancy. But possible candidates could include Kathleen Sullivan, 53, a professor and former dean of Stanford Law School; Georgia Chief Justice Leah
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