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Friday, May 01, 2009

If for no other reason, THIS is why it was vitally important that Barack Obama win the election
Posted by Jill | 5:23 AM
Justice David Souter is retiring:
David Hackett Souter had only been on a federal appeals court bench for a few months when he was tapped to replace liberal lion William Brennan, a choice many Republicans hoped would move the high court rightward and reshape American law.

"I think that is good news for all of us who are committed to the Constitution of the United States," said President Bush. "He'll be a superb justice for the Supreme Court."

In reality, Souter was in many ways a typical, old-fashioned Yankee Republican -- a moderate with an independent, even quirky streak. Whether he became more liberal in his views after joining the Supreme Court, as many conservatives believe, may depend on your politics.

"Justice Souter will never escape the label of having been an enormous disappointment, a traitor to the right," said Thomas Goldstein, a Washington appellate attorney and founder of Scotusblog.com. "It instead created the opportunity to entrench a series of more liberal rulings. So he became the right's greatest failure and we will forever hear the mantra 'No More Souters' from conservatives."

Colleagues dismiss suggestions that liberal colleagues on the bench helped move Souter to the left.

"I find that incredibly unbelievable," said Rebecca Tushnet, a former Souter law clerk and professor at Georgetown Law Center. "He was faced with different issues on the Supreme Court than he was as a state official. A Supreme Court justice requires you to make different decisions, ones that aren't always consistent with your politics. And remember the Republican Party of Nixon is a different party than the one we have today, and we have a number of judges who came out of that earlier Republican Party who may not be in line with the priorities of people in power in Republican circles today."

I remember when Souter was appointed to the Court. I remember referring to him in conversation as "Norman Bates", because of the photos of his rustic house in New Hampshire where he lived with his elderly mother. He looked creepy too at the time, and the prospect of this guy replacing William Brennan was terrifying. But as happens to many justices not named "Scalia", "Thomas", "Roberts" or "Alito", once on the Court, his opinions became somewhat unpredictable. As Republican-appointed justices go, he really hasn't been too bad.

The Court has been, or should have been, a major issue in the last three elections. Perhaps because it's been a long time since a major decision that significantly affected most people's lives came down from the bench, far too many people thought about what it means when an ideological president chooses staunch ideologues like the two doctinal wingnuts appointed by George W. Bush. I can remember seeing video clips of college girls blithely saying, "Oh they'll NEVER make abortion illegal again." That was the point at which I seriously considered just saying "Oh, the hell with it," except that then there were other issues like wiretapping and Miranda and voting rights other cornerstones of Americans' right to be left alone by their government and treated fairly by the system that a Bush (or McCain/Palin) Court would gleefully dismantle and still have room for dessert.

It's going to be interesting to watch the Republicans blather about "legislating from the bench" as they demand a justice in the mold of Sammy the Stem Cell Alito, which the President made clear the other night they're not going to get:
I do think that, to my Republican friends, I want them to realize that me reaching out to them has been genuine. I can’t sort of define bipartisanship as simply being willing to accept certain theories of theirs that we tried for eight years and didn’t work and the American people voted to change. But there are a whole host of areas where we can work together.

And I’ve said this to people like Mitch McConnell. I said, look, on health care reform, you may not agree with me that we should have a public plan — that may be philosophically just too much for you to swallow. On the other hand, there are some areas, like reducing the cost of medical malpractice insurance where you do agree with me. If I’m taking some of your ideas — and giving you credit for good ideas — the fact that you didn’t get a hundred percent can’t be a reason every single time to oppose my position. And if that is how bipartisanship is defined — a situation in which, basically, wherever there are philosophical differences I have to simply go along with ideas that have been rejected by the American people in a historic election, we’re probably not going to make progress.

I fully expect Obama to appoint a cautious, centrist justice in the mold of Stephen Breyer, and while the Republicans will blather and throw fits and get their knickers in a twist, there won't be much they can do to block whoever the nominee may be. And if they somehow manage to block, I think Obama will keep sending up names until they stop, rather than capitulate to the kind of police state theocrat that the Republican base wants.


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Blogger Jennifer said...
That was the first story I heard when I turned on NPR this morning. And my first thought? Thank the gods that Obama is the president.
I find it fascinating that ultra-conservatives think that Souter was swayed by the "liberal" on the court. That he doesn't have a mind of his own. Or the ability to look at all sides of the issues. Just because he didn't rule the way they wanted every single time. C'mon people!

Blogger skywind said...
I'm betting Obama will appoint another woman. This could be very interesting, given the new Senate configuration

Blogger Bob said...
If there's a woman as nominee, a SCOTUS fight could be the final straw for Olympia Snowe.

Blogger Distributorcap said...
i too think he will name a woman --- and an open fight on that might tip Snowe over and will further relegate the GOP into narrower and narrower hands.