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Source link: http://archive.mises.org/9883/souter-doesnt-judge-here-anymore/

Souter Doesn’t Judge Here Anymore

May 1, 2009 by

The Beltway folks are abuzz over reports that David Souter will retire from his tenured position on the Supreme Court. If you’re inclined to bet on who Barack Obama will name as Souter’s replacement, here is a safe prediction: The next justice will be a woman who received some sort of degree from, or held a position at, Harvard University.

There’s little worth saying about Souter’s 19-year tenure on the court. If there’s a Souter legacy, it is that he gave birth to the “stealth nominee” – a person so bland that he inspires no strong reaction from political hacks and interest groups. Souter was the first justice appointed after the Robert Bork-Douglas Ginsburg-Anthony Kennedy confirmation saga, and his principal appeal to then-President George Bush was that he had no particular background or views that would offend anyone.Bush appointed Souter largely on the advice of then-Senator Warren Rudman, who was a longtime friend and political patron to Souter, having helped him secure a variety of state offices in New Hampshire. When Souter turned out to be less-then-helpful to the administration on issues like abortion, Bush and his conservative critics in the GOP hung the judge in effigy and pledged never to nominate “another Souter” again.

Bush’s son took the Souter lesson to heart when he tried to appoint his own lawyer, Harriet Miers, to the Supreme Court in place of the retiring Sandra Day O’Connor. The conservatives revolted again, shocked that someone lacking their approval (and Ivy League breeding) could be allowed into the most sacred of institutions. Bush the Younger capitulated and promoted Samuel Alito, a longstanding member of the judicial bureaucracy.

It’s unfortunate that Bush did not continue to fight for Miers. Securing her place on the court would have gone a long way to demystifying that fraudulent, anti-libertarian institution. Souter represented the court at its worst. He famously told a congressional committee that cameras would only be allowed to televise court proceedings “over my dead body.” He guarded the court’s institutional secrecy with religious zeal, even as the Gang of Nine aided and abetted the continued expansion of the state at the expense of the individual.

The only positive outcome libertarians can expect from the coming nomination process is a total breakdown. If, somehow, the Senate wakes up and decides to actually challenge a nominee’s qualifications and personal views, we might get an interesting show if nothing else. But if the Souter legacy holds, we’ll be treated instead to a superficial reading of a resume and a steadfast refusal by the nominee to answer any question that might inform the public about the person that’s about to claim virtually unchecked power over their lives.


JJ May 1, 2009 at 11:07 am

So I take it that it won’t be Andrew Napolitano… unless he’s really “a woman who received some sort of degree from, or held a position at, Harvard University.”

Brutus May 1, 2009 at 1:31 pm

From a report about Souter’s retiring on Yahoo!:

“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,” [President Obama] told a Planned Parenthood conference in 2007…

Another excerpt:
The same principles apply in terms of looking for people with the highest professional competence and personal and professional excellence. We’re looking for diversity again, not only just in gender and ethnicity, but also in experience in the law and in life,” said the official, who asked not to be named. “The president has made clear that he’s looking for judges, and I think this is true for justices, who have the ability or the experience to understand the plight of real people who are in the courts.”

One would have thought that intepreting the Constitution would have been a high priority for a Supreme Court justice, especially since Bill Richardson said that Obama would uphold the Constitution during the Democratic Convention. Really, couldn’t the president and his administration at least give lip service to the Constitution? I know that they wouldn’t uphold it (neither would Republicans) but stick to your lie at least.

Also the article reports that the top candidate on paper is Judge sonia Sotomayor, a graduate from Yale Law, just like Mr. Olivia called it. Other possible nominees include Elena Kagan, a former dean of Harvard Law; Kathleen Sullivan, a professor of constitutional law at Stanford; Harold Koh, dean of Yale Law School; and Cass Sunstein from Univ. of Chicago Law.

Franklin May 1, 2009 at 1:36 pm

Which was worse, Souter’s opinion on the Kelo case (an astonishing blow to liberty) or, more recently, his dissent in the Heller handgun ruling (equally astonishing that an explicit Bill of Rights directive was nevertheless disregarded by 4 of the 9)?

And, paradoxically, he resides in the “Live Free or Die” state. Is any more evidence required to illustrate that the Constitution is a joke, as are most of the “Justices”?

When I hear somebody want to argue that an issue or stance is unconstitutional, I laugh. About the only item that garners universal agreement in that once-great, sadly tortured document is perhaps the make-up of the Congress.
And I’m not sure I’d even get universal agreement on that.

How did it all come to this?
Such a shame.

Barry Loberfeld May 1, 2009 at 1:48 pm

What do we want from Obama? Not another Breyer! Here’s why:

To those of us suffering under the delusion that the Constitution was supposed to “secure the Blessings of Liberty,” Breyer reveals that its purpose was “to create a framework for democratic government — a government that, while protecting basic individual liberties, permits citizens to govern themselves.” But how can it protect “individual liberties” when such protection is precisely what doesn’t allow “citizens to govern themselves”? Or is “basic” actually Breyerspeak for as few as possible?

At this point a certain feeling may be creeping over many, an eerie kind of déjà vu. It grows only stronger when [E.J.] Dionne reclaims the mic. “Breyer’s argument,” he explains, “leads not to judicial activism but to judicial humility. He insists that courts take care to figure out what the people’s representatives intended when they passed laws. You might say that justices should not behave like imperious English professors who insist they can interpret the true meaning of words better than those who actually wrote them.” Now that tore away the disguise, didn’t it? This isn’t the “living document”/”evolving Constitution” rhetoric that the Left’s been blaring all these years. The exalting of majoritarian democracy over individual liberty, the insistence that this view reflects the “intentions” of the Framers of the Constitution — who can mistake it? Who can still not see that behind the meek figure of Stephen Breyer looms — as his alter ego — the monstrous presence of …


Bruce Koerber May 1, 2009 at 4:33 pm

Since one of the perennial issues that will be confronting the Supreme Court in the future will be secession I suggest that the nominee be from the South where there is a greater appreciation of the value of secession.

Another significant issue that the Supreme Court will be confronted with is abolishing the central bank. I suggest that the nominee be an advocate of the gold standard (like the Founders of our Constitutional Republic).

And finally I suggest that the nominee be someone who understands the quagmire of relative morality and who can help to reorient the Supreme Court away from the ego-driven interpretation of finite human minds.

Ed McFarlane May 1, 2009 at 5:01 pm

It would be better if the Supreme Court had a jury, chosen at random from the 50 states, and let the Justices “explain” the law to the Jury. However, one should remember what Kruschev (then a Red Army commissar) is said to have said when asked to interpret the Molotov-Ribbentrop pact. “We will interpret it, and we will go on interpreting it, until not one stone of Germany is standing upon another!” The Supreme Court seems to take the same approach to the Constitution.

Magnus May 1, 2009 at 11:26 pm

The Supreme Court is a joke, and the whole field of Constitutional “interpretation” is a joke.

All of the so-called “scholarship” is nothing but an elaborate form of rationalization for self-aggrandizement and arrogation of power. It’s a con game. A scam. A racket, and the people inside the system know it.

Any decent person, or a true-believer in law and principles, would never last in that job. Such a person would have to resign, or be content to write nothing but solo dissenting opinions for 20 years.

Lysander Spooner summed it up perfectly over 100 years ago:

“whether the Constitution really be one thing, or another, this much is certain — that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist.”


Re: May 3, 2009 at 9:39 am


Yes, many powerful people have summer homes in New Hampshire. And it is, as you know, where the IMF was founded. They enjoy freedom, they just think the rest of us need to be told what to do.

J.K. Baltzersen May 4, 2009 at 5:01 am

Judge Napolitano to the federal High Court!

Wesley Bruzas June 6, 2011 at 4:28 pm

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