Tag: David Souter

Souter: “A Pantheon of Values.”


“A choice may have to be made, not because language is vague but because the Constitution embodies the desire of the American people, like most people, to have things both ways. We want order and security, and we want liberty. And we want not only liberty but equality as well. These paired desires of ours can clash, and when they do a court is forced to choose between them, between one constitutional good and another one. The court has to decide which of our approved desires has the better claim, right here, right now, and a court has to do more than read fairly when it makes this kind of choice.“

In his commencement speech at Harvard over the weekend, former Justice David Souter lays out his judicial philosophy, and thumbs his nose at the originalists he recently sat alongside. “The meaning of facts arises elsewhere and its judicial perception turns on the experience of the judges, and on their ability to think from a point of view different from their own. Meaning comes from the capacity to see what is not in some simple, objective sense there on the printed page.” (Found by way of Politics Daily’s Andrew Cohen, who gushes about the speech here.)

Roberts et al, meet Sotomayor.

“I chose to be a lawyer and ultimately a judge because I find endless challenge in the complexities of the law. I firmly believe in the rule of law as the foundation for all of our basic rights…Mr. President, I greatly appreciate the honor you are giving me, and I look forward to working with the Senate in the confirmation process.” Hearkening back to the pragmatists once again — “For as Supreme Court Justice Oliver Wendell Holmes once said, the life of the law has not been logic, it has been experience” — President Obama chooses Judge Sonia Sotomayor as Souter’s replacement on the Court. [Wiki]

Naturally, conservatives are getting their opposition ducks in a row (with some help from Jeffrey Rosen’s recent dubious hit piece in TNR.) “But some Senate GOP officials privately conceded that, barring a major stumble, the judge will probably be confirmed with relative ease. ‘You don’t have to be a rocket scientist to figure out that we need to tread very carefully,’ said John Weaver, a Republican political consultant who advised Sen. John McCain (R-Ariz.) for years. ‘The only way we’ll find ourselves in a political predicament is if we don’t treat her with the same respect that other nominees received.’” Yeah, good luck with that.

In any case, early word on Judge Sotomayor is that she is very far from the liberal activist of right-wing nightmare, but rather a “highly capable technocrat,” and exactly the sort of hypercompetent and moderate — perhaps to a fault — pick one would expect from this president. “‘She’s a lawyer’s lawyer,’ said Paul Smith, a partner at Jenner & Block who participated in the call…She’s a cautious lawyer…who was a corporate lawyer herself…She reads statutes narrowly.”

So long Souter?

“At 69, Souter is nowhere near the oldest member of the court, but he has made clear to friends for some time now that he wanted to leave Washington, a city he has never liked, and return to his native New Hampshire.” Is Justice Souter retiring after this Supreme Court term? NPR seems to think so. I’d prefer it was Scalia’s time to go, of course…but oh well. “Souter, though appointed by the first President Bush, generally votes with the more liberal members of the court, a group of four that is in a rather consistent minority.” And two of those — Stevens and Ginsberg — are good bets to retire soon as well.

Jose, can you see?

“‘Even if the Court were to rule in Padilla’s favor,’ Kennedy went on, ‘his present custody status would be unaffected. Padilla is scheduled to be tried on criminal charges. Any consideration of what rights he might be able to assert if he were returned to military custody would be hypothetical, and to no effect, at this stage of the proceedings.” By a margin of 6-3 (Ginsburg, Breyer, and Souter dissenting), the Supreme Court punts on Padilla, on the grounds that Padilla’s dilemma has been rendered “hypothetical” now that he’s been transferrred into the normal justice system.

Justice Ginsburg disagrees: “This case…raises a question of profound importance to the Nation. Does the President have authority to imprison indefinitely a United States citizen arrested on United States soil distant from a zone of combat, based on an Executive declaration that the citizen was, at the time of his arrest, an ‘enemy combatant’? It is a question the Court heard, and should have decided, two years ago. Nothing the Government has yet done purports to retract the assertion of Executive power Padilla protests.“