The Souter Retirement And The Supreme Court Confirmation Wars

by Pejman Yousefzadeh on May 1, 2009

My latest piece for the New Ledger is up and discusses the jurisprudence of Justice David Souter, what can be expected from the White House in the upcoming Supreme Court fight, and the options available to Senate Republicans in that fight. A sample:

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.

Read the rest.

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