The right eloquence needs no bell to call the people together and no constable to keep them. ~ Emerson

Wednesday, May 6, 2009

Law Souter

Cut From the Same Cloth As Many Liberals, the New Hampshire Jurist Remained a Custom Fit.

The decision by U.S. Supreme Court Justice David Souter to retire provides President Obama with his first opportunity to name a replacement to the nation’s highest court. Per conventional wisdom, it is a largely inconsequential appointment. Souter usually votes with the Court’s liberal camp and Obama should replace him with a left-leaning jurist, meaning no major changes to the Court’s current balance will result.

Yet if any Justice serves as an admonition to this assumption, it is Souter himself. Appointed by former President George H.W. Bush in 1990, everyone expected him to caucus with the Court’s conservatives. Bush wanted a right-wing ideologue without the prodigious paper trail that had ruined former President Reagan’s nomination of Robert Bork.

Souter was a newbie appointee to the First District Court of Appeals. Both New Hampshire Senator Warren Rudman and, particularly, Bush Chief of Staff and confidant John Sununu vouched for Souter as a “reliable conservative.” At first, Souter appeared to be just that. However, within two years he began voting reliably with the liberals on important cases related to abortion, civil rights, religion, the death penalty, and illegal combatant detainees.

In spite of this, Obama’s pick will alter the Supreme Court in ways both obvious and nuanced.
The most likely change is a long-needed adjustment toward gender parity. With others also clamoring for the first Hispanic Justice, Judge Sonia Sotomayor of the Second District Court of Appeals emerges as an obvious frontrunner but other names commonly mentioned include newly-appointed U.S. Solicitor General Elena Kagan and Judge Diane Wood of the Seventh District Court of Appeals. Obama might also consider non-jurist politicians, among whom Michigan Governor Jennifer Granholm garners top attention.

Like most Presidents, Obama has vowed to make legal qualifications his first priority and it is unlikely he will deviate from it with such a rich field of candidates. However, Obama has another criteria he promises to apply – one distinctly his own.

“I will seek somebody with a sharp and independent mind,” Obama told reporters – someone who understands more than just a “footnote in a case book” but also “the realities of how the law affects people's daily lives.”

Obama said that he values the “quality of empathy,” and those of “understanding and identifying with people's hopes and struggles,” calling them “an essential ingredient for arriving at just decisions and outcomes.” For example, on the question of pay disparities for women, he said that would call for “a person who could understand, through empathy, the situation that [women were] dealing with.”

“Those are all code words for an activist judge who is going to . . . be partisan on the bench,” Republican Senator Orrin Hatch of Utah warned on ABC's This Week.

Wendy Long of the conservative Judicial Confirmation Network offers an even more dire prediction. “If Obama holds to his campaign promise to appoint a Justice who rules based on her own ‘deepest values’ and what's in her own ‘heart’ – instead of what is in the Constitution and laws – he will be the first American President who has made lawlessness an explicit standard for Supreme Court Justices.”

Nonsense, sniffs Washington Post columnist Ruth Marcus. She holds that Obama’s view “reflects a more thoughtful, more nuanced understanding of the judicial role” than the impartial umpire many strict constructionists champion. What is more, she points out, empathy from the bench can run toward plaintiffs as easily as toward defendants.

Perhaps the most important factor making it difficult for Obama to pick a non-threatening nominee is the unique character and jurisprudence of the man he must replace. While Souter may be cut from the same broad liberal cloth as Obama on many issues, there is little doubt the enigmatic jurist from New Hampshire has always been a custom fit.

A lifelong bachelor and loner, Souter is said to detest Washington D.C., for both its meteorological and Beltway insider climates. He prefers driving to flying and eschews cell phones, email, and all forms of technology. He even prefers to write his numerous opinions and dissents in longhand, using a fountain pen.

The common wisdom runs that Souter waited until this year because he wanted to be sure that a Democratic President replaced him with a like-minded liberal. However, the Atlantic reports Souter spoke at an Oxford University alumni luncheon the day after his retirement announcement, where he a reporter asked if he would have retired if Republican candidate John McCain had carried the election.

“Probably,” replied Souter, suggesting his hesitation was to avoid leaving in an election year. He was attempting to be as apolitical, rather than as political, as possible. Viewed in this light, Souter’s contrarian yet essentially fair nature explains his unexpected shift left. While watching fellow Republican picks, such as Scalia and Thomas, unabashedly shift the Supreme Court further and further right, he became disgusted that once-celebrated reasonable centrism now earned contempt as left-wing extremism.

While Souter sided with liberals on many important decisions, there were certain other areas of law where he consistently cast his vote with conservatives. Robert Alt, Deputy Director of the Center for Legal and Judicial Studies at the Heritage Foundation, performed an in-depth review of Souter’s long career and found several areas where he consistently broke with liberals to provide a deciding fifth vote.

In the area of lawsuits, Souter upheld limiting excessive punitive damages against Exxon. Last year, he approved stricter standards of proof for plaintiffs initiating lawsuits related to antitrust cases.

In the area of criminal law, Souter upheld the principle of “harmless error,” maintaining courts need not throw out every conviction where an involuntary confession is admitted, when other overwhelming evidence makes such a confession unnecessary. He agreed that a sentence of life without the possibility of parole for possession of a large quantity of cocaine did not violate the Constitutional clause prohibiting Cruel and Unusual Punishment. He also concurred the Fourth Amendment does not restrict a warrantless arrest for minor misdemeanor violations.

Even liberal activists hope for a new Justice to the left of Souter. They maintain the Court’s Clinton appointees, Ginsburg and Breyer, with whom Souter often votes, lack the personality and drive to be a progressive, reforming force within the Court. Some of the broad legislative issues proposed by Obama suggest he might be of like mind.

Whoever winds up as his choice and whatever impact they make on the Court, Obama knows they will not do so exactly according to his plans. Sometimes it seems like Justices shed new skins as while getting measured for their new robes and that chair they may well sit in for the rest of their lives.

This was certainly the case with Souter and, ultimately, all profited from his independence. In the words of his friend and peer, Justice Anthony Kennedy, “In our conferences and deliberations, all of us knew we had the guidance of a powerful intellect and a fine, dedicated jurist. The nation should be grateful always for his integrity and absolute probity and for his lasting contributions to our law and to the dignity of this Court.”

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