TW: Today will be Justice Souter day, he came into the Court enigmatic and leaves enigmatic. Appointed by George H.W. Bush, he has ended up a Court moderate far more criticised by those to the right than the left. Instead of a doctrinaire Scalia, Thomas, Alito, Roberts type, Souter has presided as a moderate with slightly left of center positions. In a more progressive Court era Souter would have been regarded as a slightly right of center type, which speaks to how far right the Court has evolved in the era of Reagan/Bush.
A David Souter like person will likely not be appointed again soon. Today's turbo-charged confirmation process will ensure the new justice is less mysterious and more doctrinaire. Our Supreme Court nomination process is broken (by the mutual efforts of the left and right). Moderation and legal acuity are passe. Partisanship and rigidity are in. Another variable now enshrined by the Republicans is appointing the youngest possible justice, here is to hoping Obama at least follows that new tradition.
From Craig Crawford at Congressional Quarterly:
"...I am reminded of those days in 1990...I found Souter to be a remarkably evenhanded and surprisingly pragmatic judicial pick in an era when ideologues thought they ruled the roost.
Sure enough, Souter proved to be something of a liberal justice, at least in the context of the rightward leaning court. To his credit, he made no effort to "court" conservatives when seeking Senate confirmation. And further to his credit, the reclusive Souter once told me that, while Washington is a "horrible city" full of "despicable people," it is the "best place in the world" to do the "most good for all." Those words guide me still, and keep me on the case in this miserable town.
...You could see Souter's leftward bent coming in his 1990 Senate hearing. In particular, I recall his clever and witty responses during a testy back-and-forth with Iowa Republican Charles Grassley, who became quite frustrated with Souter's refusal to toe the conservative line. Souter simply would not provide assurances that he would narrowly interpret individual rights under the Constitution.
"As your testimony hit me on Friday, it seemed to me more the terminology likely to come from a judicial activist," Grassley said, inviting the nominee to "rephrase it in favor of something better."
Souter smiled and said, "I think you're giving me a hint, Senator."
The former New Hampshire judge offered no solace to Grassley; instead he further defended the power of courts to define unwritten rights. He cited the example of Brown vs. Board of Education, the 1954 ruling that outlawed racially segregated schools.
"If you simply read the text of the Constitution and somebody said, 'Where does it refer to school desegregation?' - of course you would not have found anything," Souter said. "But I think that clearly implicit in the text of the Constitution itself was the proper basis for the court's exercise of its jurisdiction."
Grassley then asked Souter to name any case in the court's history where "improper rights were created." The nominee mentioned none.
"Well then, let me see if I can help you where you might think the court improperly acted," Grassley said. He cited rulings during the tenure of Chief Justice Earl Warren, despised by conservatives for provoking decisions during the 1960s that aggressively expanded the rights of criminal suspects.
Souter did not agree that the Warren Court rulings went too far, describing them as a "pragmatic implementation" of the Bill of Rights.
Further aggravating conservatives, Souter praised the Warren Court rulings for teaching law enforcement officers how to protect the rights of suspects.
"We have learned to live with those rulings and we live with them pretty well today," Souter said.
One of Souter's statements during his Senate grilling has always stuck with me. Pressed for his views on individual rights, Souter offered a gem of wisdom that struck me as a delightful distillation of what our country is all about: "I'd rather have a right to do something than a right to stop someone else."
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