The Game's Afoot: Souter Shakes Up SCOTUS

by Pejman Yousefzadeh on May 1, 2009

When Dwight Eisenhower was asked whether he made any mistakes during his Presidency, he replied, “yes, two. And they are both sitting on the Supreme Court!” The two mistakes President Eisenhower referred to were Chief Justice Earl Warren, and Associate Justice William Brennan, both of whom were elevated to the Court by the 34th President.

When Justice Brennan finally retired, it fell to the 41st President of the United States to replace him. One can no sooner imagine George Herbert Walker Bush being caustic and dismissive of anyone whose career was associated with his time in the White House than one can imagine the sky turning purple. But while the elder President Bush made more than one–or two–mistakes while serving as Leader of the Free World, one of the biggest mistakes he made was to elevate David Souter to the Supreme Court to replace Justice Brennan.

We now learn that Justice Souter appears set to retire himself. The story may come as a surprise, but it is not as if we did not have warnings. Of course, Justice Souter retires with the nation’s thanks for his service, and its best wishes for his future work and his life in repose. But it is impossible to pass over Justice Souter’s time on the Court without concluding that there was something seriously flawed with his jurisprudence. Unlike Justice Stephen Breyer–who is an expert in fields like administrative law and a formidable intellectual force to be contended with–Justice Souter, while undoubtedly bright, did not present a serious or coherent judicial philosophy that one could seriously respect.

Justice Souter got to the Court in the first place because of the powerful recommendation made on his behalf by former New Hampshire Governor John Sununu, who served as the elder President Bush’s first Chief of Staff and who was well acquainted with David Souter, as the latter was a member of the New Hampshire Supreme Court while Sununu was the Governor. Sununu vouched for Souter and assured President Bush that Souter would be a stalwart champion of originalist jurisprudence. Another character witness of sorts was former New Hampshire Senator Warren Rudman, who was highly influential with President Bush and who was one of Souter’s most stalwart champions.

With almost no paper trail to allow potential opponents to Bork him, and with an impressive ability to say little in hearings before the Senate Judiciary Committee and make his silence seem erudite, Souter won easy and overwhelming confirmation in the Committee and in the full Senate. Conservatives, believing that they had been able to replace the liberal lion, Brennan, with a new and vigorous conservative jurist, rejoiced.

There were warnings that David Souter would not be the Justice conservatives hoped he would be, but those warnings were ignored. Within short order, however, it became clear that Justice Souter would give conservatives every reason to rue their advocacy for his confirmation to the Court.

Justice Souter shocked and disappointed conservatives by voting in Planned Parenthood v. Casey to uphold the Supreme Court’s core finding of a constitutional right to an abortion. In the event that there was any doubt about the direction of his jurisprudence, Justice Souter also ruled in Lee v. Weisman that offering a prayer at a high school graduate ceremony violated the Establishment Clause of the First Amendment. The Justice’s rulings understandably puzzled Court-watchers. Lawyers and judges disagree about what the law says all the time, but Justice Souter’s participation in Court deliberations muddled debate instead of clarifying the issues. Ramesh Ponnuru summarized Justice Souter’s jurisprudence is Casey quite nicely:

The Casey decision exemplifies the objectionable tendencies in Souter’s style of judging. In their joint opinion, Justices Souter, O’Connor, and Kennedy signaled the Court’s willingness to tolerate some restrictions on abortion; but they also gave abortion rights a firmer constitutional anchor than ever before. Abortion rights, it turns out, are part of the “liberty” mentioned in the Fourteenth Amendment, because “At the heart of liberty is the right to define one’s own concept of existence, of meaning, the universe, and of the mystery of human life.” In other words, as Notre Dame law professor Gerard Bradley explains, “constructing your own moral universe” is now a constitutional right guaranteed by the Court.

The joint opinion strongly implied that one or more of the three Justices would have voted the other way if not for the Roe precedent. Souter drafted a section explaining that Roe should be upheld both because Americans had come to rely on the “availability of abortion” in arranging important aspects of their lives and because reversing Roe would appear to be “a surrender to political pressure. . . . So to overrule under fire in the absence of the most compelling reason to re-examine a watershed decision would subvert the Court’s legitimacy beyond any serious question.” In effect, Souter made the Supreme Court a party to the case it was judging.

Justice Souter’s pattern of jurisprudence was reinforced when he voted to endorse the abuse of eminent domain in Kelo v. City of New London, which allowed the city of New London, Connecticut, to evict Susette Kelo from her home in order to make room for private development on the land where Kelo’s home was located. This despite the fact that there was no urban blight to be found that would have justified the exercise of eminent domain powers, and despite the fact that there were no viable projects being planned at the time for implementation in the land that New London did own before evicting Susette Kelo. A funny side-story that emerged in the aftermath of the ruling in Kelo was an effort to exercise eminent domain in order to get David Souter evicted from his home. This never came to pass, though one wonders what it might have done for Justice Souter’s jurisprudence if he were forced to live with the consequences of his own rulings.

The promulgation of this irrational, nakedly political, and somewhat psychedelic jurisprudence did nothing to hurt Justice Souter’s reputation amongst the mainstream media. With the Greenhouse Effect in full force, the mainstream media set about glorifying the reputation of Justice Souter. We were informed, seventeen years ago, that Justice Souter was “anchoring the Court’s new center” thanks to his “essentially moderate approach to judging and respect for precedent.” You know, the “moderate approach” that was so absent in Souter’s jurisprudence when it came to cases like Casey and Kelo. We were told that Justice Souter helped “lead the search for the Court’s lost common ground,” despite the fact that the Justice eventually ended up being one of the most reliable supporters of the liberal wing of the Court (whose other members are Justices Stevens, Ginsberg and Breyer). Thanks to his votes, and thanks to the way in which he ended up–deliberately or inadvertently–currying favor with the self-styled bien-pensant community (nowadays, the bien-pensant community prefers it if you call them “reality-based”), Justice Souter was able to garner praise for his “clear, direct and precise” questions, his “genteel manner that still commands attention,” and his supposed ability “to acknowledge the weight of opposing arguments and to discuss and defend his own choices from among competing rationales.” By now, after reading all of this praise, the reader’s eyes must be in danger of breaking; so repeatedly have they likely rolled into the back of the reader’s head. But behold the wages of voting the “right” way; heroic and constant encomiums from the likes of the New York Times.

Not that the Times were alone in fostering The Continuing Apotheosis Of David Souter. The ever-frivolous Dahlia Lithwick has opined that David Souter may have veered to the left because:

. . . he had so little “real-life” experience prior to his confirmation that he only developed his jurisprudential views after donning the black robe. Souter himself has said that when he was confirmed he knew next to nothing about important federal constitutional issues—having had experience as a state attorney general and then as a state supreme court justice. At his confirmation hearings he answered truthfully but saw his views change radically once he began to truly study the issues. Because judges often hail from Ivy League institutions or from the lower courts, they may be less likely to have fully formed political ideologies. Certainly there is some truth to the proposition that justices who either rose through the executive branch (like a Clarence Thomas) or had tremendous advocacy experience (like a Ruth Bader Ginsburg) are less likely to change their views once confirmed.

So, thanks to the fact that Justice Souter “truly stud[ied] the issues” once he was confirmed, he voted with the liberal wing on a regular basis. Presumably, if the Justice were less studious, he would have voted with the conservatives. Draw your own conclusions about what Lithwick is saying when she writes stuff like this; I know what I think is being implied here.

The funny thing, of course, is that Justice Souter’s commitment to “study[ing] the issues” is in doubt, given what he has said about his work on the Court. It has been no secret in recent years that Justice Souter hated his job. He famously stated that every time the Court’s new term began, he would suffer a “sort of annual intellectual lobotomy” upon resuming his duties on the bench after the summer recess. In his comments, Justice Souter made clear that he vastly preferred reading his books during the summer, and that his work on the Court was significantly less interesting intellectually. How a Supreme Court Justice who plainly loved the practice of law and its adjudication prior to his elevation by President Bush could possibly have said something so surprising is anyone’s guess. But Justice Souter’s demonstrable lack of enthusiasm when it came to his job made it doubtful at best that he devoted much time to “study[ing] the issues” as a U.S. Supreme Court Justice.

With intellectual boredom came disillusionment and–it would appear–even tears. As reported in Jeffrey Toobin’s book, The Nine, the resolution of Bush v. Gore apparently caused such anger and sadness in the “fundamentally . . . very different” Souter who “came from a tradition where the independence of the judiciary was the foundation of the rules of law,” that Souter would weep whenever he thought of Bush v. Gore. At times, apparently, Justice Souter considered resigning from the Court because of the trauma inflicted upon him by Bush v. Gore. Now that he has a President who will work to nominate and confirm a Justice in the mold of David Souter, and a Senate whose overwhelming Democratic membership will likely render it compliant to the President’s wishes, the time seems to be right, from Justice Souter’s perspective, to finally quit the Court and go back to New Hampshire.

The President has a number of candidates he can choose to fill Justice Souter’s seat, and lists of candidates abound throughout the Internet. The identity of Barack Obama’s choice may be a mystery, but we have a sense of the President’s criteria, touchy-feely though it may be:

I taught constitutional law for 10 years, and . . . when you look at what makes a great Supreme Court justice, it’s not just the particular issue and how they rule, but it’s their conception of the Court. And part of the role of the Court is that it is going to protect people who may be vulnerable in the political process, the outsider, the minority, those who are vulnerable, those who don’t have a lot of clout.

. . . [S]ometimes we’re only looking at academics or people who’ve been in the [lower] court. If we can find people who have life experience and they understand what it means to be on the outside, what it means to have the system not work for them, that’s the kind of person I want on the Supreme Court.

[. . .]

We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old. And that’s the criteria by which I’m going to be selecting my judges.

In the event that this isn’t specific enough for the reader, behold a starker statement of the President’s views on the confirmation process, and the kind of candidate it ought to produce for the Court:

On Obama’s [Senate] staff, [the] absence [of a Thurgood Marshall-type Justice] is also keenly felt. How to fix that? “We’d want a nominee who would do what John Roberts did,” one staff member said. “You go through the process and say ‘Hey, I’ll look at each case as it comes.’ You have a moderate temperament. You’re affable and everybody likes you. And then you get up there, and after a year and a half, you vote on the opposite side from John Roberts in every single case where that’s warranted and it matters.”

In short, Barack Obama intends to nominate a stealth candidate who can bamboozle the Senate–because supposedly, this is what Chief Justice Roberts did when he got nominated–get confirmed, and then vote reliably liberal with an occasional Nelsonesque “Ha-ha! Fooled you!” taunt directed across the street toward the Senate in general and Senate Republicans in particular. Naturally, this effort is aided by pundits who work unconvincingly to convince us that Barack Obama ain’t ideological when it comes to judicial picks, no siree.

The White House’s anticipated disinformation campaign on Supreme Court nominations ought to be resisted, and while the ability of Senate Republicans to resist is dramatically weakened, the obligation remains. It is not as if Senate Republicans are entirely deprived of the ability to fight; they can demand, as Senator Charles Schumer did, that President Obama

. . . should consult meaningfully with senators of both parties to arrive at a consensus nominee, not only because the Constitution contemplates it, but because the country needs and deserves it. After [three] exceedingly divisive presidential elections and a season of bitter partisanship, Americans want the President and the Senate to unite rather than divide the nation.

I thought this sentiment was poppycock when Schumer offered it in the aftermath of Justice O’Connor’s retirement. I still do. But hey, turnabout is fair play, and there is no reason why Republicans can’t quote it back at Senator Schumer, his colleagues in the Senate Democratic Caucus, and their former colleague at 1600 Pennsylvania Avenue. For kicks, demands could also be issued that the eventual Supreme Court nominee “show us his/her heart,” with opposition to the nomination naturally emerging once it becomes clear that we will not have a sufficiently panoramic view of the atriums and ventricles of President Obama’s choice to replace Justice Souter. That this will allow Republicans to use former Senate Judiciary Committee Chairman–and current Vice President–Joe Biden’s words back at him (a phenomenon that seems to occur ever Monday, Wednesday, Friday, Saturday, and alternate Sundays) is an extra benefit.

Words are not enough to oppose a nominee, of course. But Senate Republicans do not have mere words on their side. They also have parliamentary procedure. In order to get any judicial nominee out of the Senate Judiciary Committee with a favorable vote, and on to the Senate floor for a full confirmation vote, at least one Republican on the Senate Judiciary Committee must allow the nomination to get out of committee. Thanks to the defection of Arlen Specter–who knew that Republicans would so soon have reasons to celebrate Specter’s defection?–Senate Democrats and the Obama Administration must rely on more conservative Republicans on the Judiciary Committee to provide the liberating, bipartisan vote needed to forward the nomination to the full Senate.

This means that if a nominee is too far to the left, or otherwise objectionable to Senate Republicans, the nomination can remain stranded in the Senate Judiciary Committee. Does this mean that the seat may not be filled for a long time? Possibly, but there is no reason to worry. As Yale Law Professor Bruce Ackerman once assured us, scenarios could be concocted in which it was perfectly all right to leave a Supreme Court seat unfilled in order to fulfill the partisan aims of the party shut out of the White House. I am sure Professor Ackerman won’t mind the appropriation of his view on this issue, and its use by Senate Republicans against President Obama in the event that the upcoming fight over Justice Souter’s successor does not appear to be going the Republicans’ way.

After all, there is no reason for President Obama to compound the elder President Bush’s mistake. One David Souter is quite enough. The occupant of the Oval Office must be saved from making similar errors in the future, no?

Read more and comment at Pejman Yousefzadeh’s blog.

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