Justice David Hackett Souter submitted his retirement letter to President Obama this morning.
The news actually broke late yesterday, and left many -both in the legal profession and in the general population- with the kind of sinking feeling one gets when a family member discloses a terminal illness.
During 19 years on the Supreme Court, Justice Souter charted an independent course. When nominated by then-President George H.W. Bush in 1990, Souter was expected to be another deeply conservative jurist in the mold of Antonin Scalia or Clarence Thomas. Progressives braced themselves for the worst. I recall offering an egregious pun -that I’d rather have a lover than a Souter- that reflected my own anxiety about what the elevation to the Court this laconic New Hampshire Yankee might portend for the nation.
Certainly, Souter surprised both liberals and conservatives alike. Movement conservatives expecting a rigid or radical right-wing judge were disappointed -to the point where the very name Souter has become hateful to many of them. Though liberals professed themselves disappointed by some of Souter’s views on business and corporate issues, they took considerable comfort from Souter’s more moderate-to-liberal views on individual rights and liberties.
Now, of course, the feeding frenzy has begun again, and movement people on both sides of the political divide are gathering their troops; conservatives and liberals alike will want President Obama to appoint a justice who mirrors their own expectations.
Conservatives will inevitably be disappointed; a Democratic President is hardly likely to appoint the sort of judicial clone of John Roberts, Antonin Scalia, or Clarence Thomas that movement conservatives prefer. Conversely, movement liberals will probably be angered if the President does not select a staunch liberal.
Yet the Court has been moved too far to the right for a single appointment to redress the balance. As has been repeatedly noted, Souter has been numbered among the Court’s “liberals;” replacing him will not alter the ideological balance on the Supreme bench.
Still, as President Obama has already noted, the new justice should have certain qualifications, among them a real sense of empathy, and a realization that the law affects real people living real lives.
There are a number of other qualifications the person selected to replace David Souter should have, some of them technical, some of them political, all of them important, but half a dozen of which merit exploration:
First, she should have a fundamental passion for the law. She needs to be able to chart a careful course between precedent and innovation. She must respect stare decisis (the principle that existing precedent should govern wherever possible), while not allowing stare decisis to become a judicial straightjacket acting to perpetuate injustice or bad law. She must understand that the law is both conservative in its growth and functioning, and liberal in its solicitude for the rights and liberties of individuals.
Second, she must be an exacting craftswoman with language. Supreme Court opinions have grown fat and prolix, burdened with deluges of dicta and floods of footnotes -dangling from the bottom of the page in a display of gratuitous erudition like useless tassels on a Biedermeyer chair. Her opinions should be like vodka, powerful and clear, most effective in measured doses. When she writes on a matter that transfixes the nation, she should be aware that she is writing not just to decide the case, but for the ages as well.
Third, she must never forget that -as President Obama has observed- the Court’s holdings are not academic exercises, but are intended to guide real people dealing with real issues; they will affect not merely the parties to the case before the Court, but millions of people across the nation and around the world as well. The beat cop wondering when he can conduct a warrantless search, the school principal who needs to know what the permissible restrictions may be on student speech, the bankruptcy debtor who needs to know what he can hold on to out of the financial wreckage, the taxpayer uncertain what is and is not deductible. These are just few of the people whose actions will be guided by the views and decisions of the incoming justice and her colleagues.
Fourth, she must have a thick skin and should have some history in politics. Every opinion she writes will anger somebody, somewhere. In a wired world where everybody has an opinion, Supreme Court justices -like other public figures- can expect to be lauded and vilified at the same time. A justice with some political history, either as a candidate or elected official, or in a campaign, would bring to the Court an understanding of some of the political dynamics that operate outside the Supreme Court building -an understanding that the current Justices, given their career histories, may not possess.
Fifth, she must be her own person on the Court and in national life. She should not be identified with movement people on either side, nor should she herself be a movement person. She should be able to avoid being reflexively associated with any other Justice, not being “joined at the hip” to another member of the Court, in the way that Justices Scalia and Thomas are often linked together.
Sixth, she must be able to carry the Court with her, building workable coalitions where possible. Justices are often honored for their great dissents, but being a “Great Dissenter” does not always advance the law.
Finally, she should be a woman. The legal profession is no longer an exclusively male preserve; the gender ratio is approaching parity, and the Court, having only one woman among its membership, is increasingly disconnected from a world in which women participate as equals at every level. It is simply obscurantist and sexist to argue that there are not more than enough women with the intellectual chops to be first-rate Justices to whom President Obama can turn.
During the 2008 presidential primary campaign, then-Senator and now Secretary of State Hillary Rodham Clinton spoke eloquently of the 18 million cracks in the glass ceiling that the votes for her had represented. The GOP nominated Sarah Palin as its vice-presidential candidate. To the extent that the arrival of each new justice essentially remakes the Supreme Court, rejiggering the interpersonal dynamics of the institution, the time is now to begin redressing the gender balance on the world’s most important court.
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The views expressed herein are my own, and do not necessarily represent the views of the City of Cathedral City, the Redevelopment Agency, or any other body or person.
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