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.