May 4, 2009

Would you have picked David Souter? Would Obama?

"He wore the same gray suit year after year. He worked long hours, including weekends, and ate lunch at his desk.... He collected old books and revered precedents in the law. He would not watch television or use a computer. He avoided Washington parties. Instead, in the evenings, he jogged several miles near his small apartment. His summers were spent hiking in the White Mountains of New Hampshire."

Some group of 9 individuals will say what the law is for us all. What sort of individuals do you want? Assume fine intellectual credentials and solid relevant experience. Aside from that, what sort of individual characteristics make you want to give a man or woman this immense responsibility?

Here's what Obama said after David Souter revealed his intention to leave the Supreme Court:
Justice Souter has shown what it means to be a fair-minded and independent judge. He came to the bench with no particular ideology. He never sought to promote a political agenda.

He approached judging as he approaches life, with a feverish work ethic and a good sense of humor, with integrity, equanimity and compassion -- the hallmark of not just being a good judge, but of being a good person.
Feverish... that is the out-of-place word that tells us something about Obama. Souter sounds utterly cool — if anything, too cold to trust with the grand decisions of life and liberty submitted to the Court.

The key thing Obama has told us about what he wants in a Supreme Court Justice is empathy:
I view that quality of empathy, of understanding and identifying with people's hopes and struggles as an essential ingredient for arriving as just decisions and outcomes. I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role. I will seek somebody who shares my respect for constitutional values on which this nation was founded, and who brings a thoughtful understanding of how to apply them in our time.
Obama — like many lawprofs — believes (or purports to believe) that emotion and engagement with real life is integral to constitutional interpretation. This is different (or certainly purports to be different) from deciding cases according to one's sympathies. But even understood that way, Obama's favorite qualification would obviously have excluded the bookish, reclusive Souter.

That word "empathy" stoked the Sunday talk shows:
“What does that mean? Usually that’s a code word for an activist judge,” Sen. Orrin Hatch (R-Utah) said on ABC’s “This Week.”...

“I may have empathy for, for the little guy in a fight with a big corporation, but the law may not be on his side. So I think that’s a concern,” former Republican Party Chairman Ed Gillespie said on NBC’s “Meet the Press.”

“What I hear in President Obama’s statement is that he wants the justices of the court to try to understand the real world we live in and the impact of some of these decisions. Apply the law, but do it in a sensible fashion,” Sen. Dick Durbin (D-Ill.) said on “Fox News Sunday.”...

Obama’s comments Friday about judges needing to identify “with people’s hopes and struggles” and the reaction to those remarks seemed to cast the early debate in a way that is likely to favor Democrats — especially at a time of economic distress, when Wall Street and big corporations are widely regarded by many as a greater threat than the rulings of federal judges.

In fact, the anti-establishment attitude that powered Obama’s campaign remains strong enough that there is serious discussion of putting a nonjudge, or even a nonlawyer, on the court, which presently consists entirely of former federal appeals court judges.

“I would like to see more people from outside the judicial monastery, somebody who has had some real-life experience, not just as a judge,” Sen. Pat Leahy (D-Vt.), the chairman of the Judiciary Committee, said on ABC.
And who was more monk-like than David Souter?

It's funny. For years, I've heard conservatives cry "No more Souters!" But now, I'm hearing the Democrats say that too. All due respect will be paid to the retiring Justice, but he isn't what they want.

And frankly, he isn't what they should want. The Court needs a forthright liberal. And Obama is perfectly entitled to pick such an individual. Of course, this person will — as Obama said — be dedicated to the rule of law, honor constitutional tradition, and respect the integrity of the judicial process and the appropriate limits of the judicial role. But he or she will do all of this in the liberal mode. I hope to see a fine Justice who will show us how this is done.

50 comments:

sean said...

Let us add that for Obama, as for most lawprofs, the "emotion" that is integral to constitutional interpretation has to be a politically correct emotion. Certainly one isn't supposed to bring normal American emotions about the flag into free speech cases, or normal American emotions about God into establishment clause cases, or normal human emotions about babies into abortion cases.

MadisonMan said...

I think a very hard worker like Souter would be grand. I don't see how one can excel in any particular field without such a work ethic, and bully for him for doing it, and for the benefit of the country.

I presume he is a happy man, even though his life would be not happy for me if I lived it. But my brother would live life like that with contentment.

Lots of framing in this SC nomination discussion.

SteveR said...

If Obama cared about the little guy he'd nominate folks who've paid their damn taxes. For starters.

AJ Lynch said...

I bet the Professor will not get what she wants.

Zeb Quinn said...

I'm just trying to figure out why the court "needs" a forthright liberal.

vet66 said...

According to liberals/progressives, we don't need no stinking Constitution, we need someone who can ask the really important questions. Like, "How does that make you feeeelll?"

They are well on their way to changing the "Melting Pot" into a cheese fondue of entitlement.

Stephanie Carnes said...

This is the second time Althouse has called for a strong liberal judge. Are Ginsburg, Stevens, and Breyer not liberal enough or not forthright enough? Or is the issue their imminent retirements? If that's the case, Obama will have plenty of chances to appoint liberals.

rdkraus said...

Couldn't we just have someone who looks at what the Constitution actually says and, if necessary, looks to what the people who wrote it meant it to mean?

Hmmmm?

No. That is the one thing we won't get.

I just hope that the opposition (LOL) and the conservative/libertarian think tanks can prevent him from ruining the court as surely as he has ruined the country's finances.

rdkraus said...

Define empathy: A lot more emanations and pnumbras that have nothing to do with the Constitution, and everything to do with legislating from the bench.

Bob_R said...

I agree that Obama should be able to appoint a liberal to the course (which is why I voted against him). Are you saying that current liberals on the court are in some ways inadequate, or just that there should be more of them?

richard said...

And frankly, he isn't what they should want. The Court needs a forthright liberal. you beat me to it stephanie. if these three have been unable to articulate the liberal position to the satisfaction of pro. althouse could there be something wrong with the message?

Pogo said...

Whatever the personal proclivities and foibles of the nominee, the result will be to further the relentless expansion of the coercive powers of the state.

Now that the right to property has been rejected, the next justice will make the right to plunder the law of the land.

And so we descend, not with a bang but a whimper. Fellow sheep, I for one welcome our new shepherd overlords.

Lem said...

I’m hoping for a Marine Biologist myself.

(At the beach everyone is yelling at George)
Crowd: Come on! Save the whale! Hurry up it's gonna die!

Diane: Save the whale George... for me.

(He turns and throws his hat down. He walks into the ocean)

(At the coffee shop Jerry and Kramer are awaiting the story)

George: So I started to walk into the water. I won't lie to you boys, I was terrified! But I pressed on and as I made my way passed the breakers a strange calm came over me. I don't know if it was divine intervention or the kinship of all living things but I tell you Jerry at that moment I was a marine biologist!

Kramer: Come on George, finish the story.

George: The sea was angry that day my friends, like an old man trying to return soup at a deli!

(Jerry gives Kramer a "what the h-" glance)

George: I got about fifty-feet out and then suddenly the great beast appeared before me. I tell ya he was ten stories high if he was a foot. As if sensing my presence he gave out a big bellow. I said, "Easy big fella!" And then as I watched him struggling I realized something was obstructing his breathing. From where I was standing I could see directly into the eye of the great fish!

Jerry: Mammal.

George: Whatever.

Kramer: Well, what did you do next?

George: Then from out of nowhere a huge title wave lifted, tossed like a cork and I found myself on top of him face to face with the blow-hole. I could barely see from all of the waves crashing down on top of me but I knew something was there so I reached my hand and pulled out the obstruction!

(George pulls out of the inside pocket a golf ball)

(Jerry and George just stare at Kramer)

Kramer: What is that a Titleist? A hole in one eh
.

EnigmatiCore said...

"Justice Souter has shown what it means to be a fair-minded and independent judge."

This strikes me as mostly true, especially the independent part.

"He came to the bench with no particular ideology. He never sought to promote a political agenda."

This strikes me as almost impossible to defend.

Robert Cook said...

"Certainly one isn't supposed to bring normal American emotions about the flag into free speech cases, or normal American emotions about God in establishment clause causes...".

And just what are "normal American emotions" about the flag and God?

Do you suggest it is "normal" for Americans to feel such adoration for their flag that they cannot tolerate so-called "desecration" of it--burning, tearing, stamping into the ground, etc.--or cannot--if "normal"--accept courts that see such acts as protected speech? Do you suggest it is "normal" for Americans to feel such fierce love for their God that they cannot and should not accept the idea, upheld by the courts, that others do not share their feelings--or their God--and should not have to be subjected to unwanted expressions of religious dogma?

Big Mike said...

Professor, did you really write "dedicated to the rule of law, honor constitutional tradition, and respect the integrity of the judicial process and the appropriate limits of the judicial role" in the same paragraph as "liberal"? If liberals were, as a breed, "dedicated to the rule of law" then wouldn't they at least pay their taxes? Maybe respect the AIG contracts -- however unpalatable?

While you're at it, why not ask for perpetual motion machines, and other impossible things?

Beta Conservative said...

Without real opposition this subject isn't very interesting.

Obama could nominate Daniel Ortega and the media would soil themselves while gushing over the great depth and wisdom shown, and the Dems would confirm easily.

Until there is a possibility of an old fashioned political brawl it's like watching an exhibition game.

By the way, let me say before the lefties chime in that the Repubs have themselves to blame for this sorry state.

ElcubanitoKC said...

Does he have enough empathy?

Big Mike said...

To answer you, Robert, I'm an atheist so I'm scarcely emotionally involved in Christmas displays. I wish other atheists were as tolerant of religious displays as I am, but liberals are among the most intolerant people I know. The most normal liberal is down there with the craziest evangelical.

rdkraus said...

Pogo

You think plunder is not already the law?

Just kidding. I know your know it is.

Bastiat much?

hdhouse said...
This comment has been removed by the author.
John said...

Only someone truly diabolically evil speaking some kind of Orwellian newspeak or a complete nave with no idea about how real court cases work an little wisdome would say that a judge's most important feature is empathy.

If it were just about empathy we wouldn't need the law. We could just award to whomever we found to be the most sympathetic party. Of course we can't do that. In fact, both parties to a case are sympathetic in their own way. As a prosecutor I sent 19 year old kids to jail for decades. I felt damn bad for their mothers and in some corner of my heart for the accused themselves. But that didn't change what they did or the need for justice. In the end what the hell did empathy have to do with it? Nothing.

Empathy in this context is just an excuse to ignore one side and do whatever you want to. It is the moral veneer of lawlessness.

hdhouse said...

hdhouse said...
I wrote on another thread that the court if lined up right to left, should balance a teeter-totter. It is way out of balance now and Ann's points are all valid.

And frankly it wouldn't matter who he appointed to some on here who think that not voting for Obama and being against him at the drop of hat somehow gives you the nod to dictate his choices.

If the right thinks it has a monopoly on SC selection, I beg you to remember Harriet Miers.

Bob Sacamano said...

Obama would not have picked Souter because he's a white man and not, presumably, a member of any victim class. White men cannot empathize with anyone.

Zach said...

Obama — like many lawprofs — believes (or purports to believe) that emotion and engagement with real life is integral to constitutional interpretation. This is different (or certainly purports to be different) from deciding cases according to one's sympathies.When I'm pessimistic, I think of this sentiment as a form of class solidarity. After all, Obama shares a great deal of background with any likely candidate -- he even spent a few delittantish years as an instructor in a law school. The more vague your theory of interpretation is, the more room you have to make the prejudices and unexamined assumptions of Harvard Law the law of the land.

ElcubanitoKC said...

hdhouse said...
hdhouse said...
I wrote on another thread that the court if lined up right to left, should balance a teeter-totter. It is way out of balance now and Ann's points are all valid.

And frankly it wouldn't matter who he appointed to some on here who think that not voting for Obama and being against him at the drop of hat somehow gives you the nod to dictate his choices.

If the right thinks it has a monopoly on SC selection, I beg you to remember Harriet Miers.

9:07 AM
What?

Maguro said...

Interesting that Leahy and Specter are giving us the same talking point about the desirability of "real-life experience" over judicial experience.

Is the administration setting the stage for a specific non-judge/non-lawyer who might be rather controversial?

Pogo said...

"Bastiat much?"A prescient and wise man, no?

He makes me think we are running headlong toward our own French Revolutions.

Salamandyr said...

Antonin Scalia made a good point in a a recent interview, that what about 90 per cent of what the Supreme Court deals with is procedural disagreements that is only of any real interest to lawyers.

Is it really a good idea to nominate someone who has no training, or interest in, the 90% of the Court's work that is not making big decisions about how people live their lives?

rdkraus said...

Pogo

Yes. Very wise.

Bastiat would be very sad to see the direction France and this country have taken.

Bissage said...

No matter what else might be said of him or her, I sincerely believe that Justice Souter’s replacement should be able to do a really good impression of Frank Gorshin doing an impression of James Cagney doing an impression of Richard Nixon.

traditionalguy said...

No matter for how long and how many repetitions of the "I care for poor and oppressed people" meme comes out of Teleprompter and the Dems., The criteria for selecting a Supreme Court apparatchik will be the destruction of the Constitutional limitations on disarming of the citizens. Government sponsored propaganda portraying all citizens who have retained legal weapons and skills in their use, has already begun with the findings that they are weak minded Hooligans and Terrorists. First things first.To re-create America, Obama must first go back and destroy the American arrogance of indepence begun by weak minded Gun Owners in their Rebellion of 1776, which the illegally started trying to keep their weapons and ammunition then stored at Lexington and Concord.

rdkraus said...

Think about the kinds of technical questions that were posed to Roberts and Alito.

How would a non-lawyer answer those? How could he/she possibly be qualified to answer those questions as a member of the Court? Isn't that the job we're interviewing for?

Robert Cook said...

"Only someone truly diabolically evil speaking some kind of Orwellian newspeak or a complete nave with no idea about how real court cases work an little wisdome would say that a judge's most important feature is empathy.

If it were just about empathy we wouldn't need the law"
.

No: if it were just about the law, we wouldn't need judges.

The law without empathy is not justice but tyranny. A judge without empathy--and the power to act on it (removed in recent years by mandatory sentencing laws)--is not a judge at all, but merely a technocrat insuring that the letter of the law is followed in court proceedings. Even Communist China or Soviet Russia had laws and trials and judges. Should we therefore assume all their verdicts and sentences were just, all those convicted deservedly so?

A "judge" judges, makes distinctions and renders punishment according not only to the law but also to his or her conscience and sense of what is right and proportional.

Not every 19 year old offender should serve decades in prison merely because the legal cookbook says it must be so.

Richard Fagin said...

Let's examine the Prof's statement.

"The Court needs a forthright liberal." That is a value judgment just as much as it would be to state that the Court needs a forthright conservative. Why does the Court "need" a liberal? To rephrase that question, what current imbalance on the Court manifested in its holdings would be remedied, or what balance would be preserved by having a forthright liberal to replace Justice Souter? What do you believe would be the result to consitutional law of Obama picking a forthright conservative?

"And Obama is perfectly entitled to pick such an individual." No dispute here. He is the President, and is entitled to pick whoever he wants. Whether or not the Senate concurs in any particular selection is another matter.

"Of course, this person will — as Obama said — be dedicated to the rule of law, honor constitutional tradition, and respect the integrity of the judicial process and the appropriate limits of the judicial role." I respectfuly disagree. President Obama's appoinments to executive offices have been completely inconsistent with that statement. His executive appoinments (Geithner, Ratner, Emmanuel, Holder, Solis) have shown contempt for the law, an inclination to abuse the power of the office to intimidate political enemies and to cause others to forego asserting their rights. It is entirely reasonable to expect that any Obama judicial appointment will show similar contempt for the law and an inclination to use whatever power the Court has (or will seek to enlarge) to impose his policy preferences.

I don't have any problem with "empathy" when it is limited by the letter of the law and is consistent with the law. It is hard to dispute Thurgood Marshall's characterization of police interrogation as similar to the "rack and thumbscrew", and his efforts to persuade his colleagues tp broaden the scope of 4th amendment protection were well based in the empathy of personal experience.

But that just ain't what you're gonna get from President Obama. His "empathy" and experience are based on 20 years of "God damn America!" (not to mention palling around with Bill Ayers) and if one believes his judicial appointments will reflect any less innate hostility to self-government, that is a reflection of exceptionally poor judgment of character.

Robert Cook said...

"No matter what else might be said of him or her, I sincerely believe that Justice Souter’s replacement should be able to do a really good impression of Frank Gorshin doing an impression of James Cagney doing an impression of Richard Nixon".

I'd prefer it if he could do a really good impression of Frank Gorshin doing The Riddler.

DBrooks17 said...

John @ 9:07 has the comment of the week--"It is the moral veneer of lawlessness." For me, we could have stopped the comments after sean's opening salvo. His comments on "emotion" are right on the money.

Big Mike said...

A "judge" judges, makes distinctions and renders punishment according not only to the law but also to his or her conscience and sense of what is right and proportional.

And that, Robert, is where you're not merely wrong but dead wrong. What you propose is the end of law and the start of adjudication by whim.

Smilin' Jack said...

Obama — like many lawprofs — believes (or purports to believe) that emotion and engagement with real life is integral to constitutional interpretation... Obama's favorite qualification would obviously have excluded the bookish, reclusive Souter.Bookish and reclusive Americans should keep in mind, however, that although their President does not consider them to be alive, they are still required to pay taxes.

TituslovesUandU2 said...

Souter was the Walden of our time.

Love him.

Frodo Potter said...

The Supreme Court does not need a liberal ideologue anymore than it needs a conservative ideologue. What the Supreme Court desperately needs are two more Sandra Day O’Connors—pragmatic moderates thoroughly grounded in the law, and with loads and loads of common sense. That last quality is lacking in judges in general. It’s just idle speculation (since I am no fan of network television), but perhaps if Souter had watched more TV or surfed the Internet a bit he might have had more common sense.

Kirk Parker said...

"I hope to see a fine Justice who will show us how this is done."

So Althouse, are you hinting that this is your Dick Cheney moment?

Palladian said...

"Souter was the Walden of our time.

Love him."

He was the Walden of our time? Hmm, I didn't know that Walden was an autobiography.

rhhardin said...

The Court needs a forthright liberal.

Meaning a force is needed that undermines the Constitution?

rhhardin said...

Souter was the Walden of our time.

Good old Wally, they used to call him.

Melissa said...

"Antonin Scalia made a good point in a a recent interview, that what about 90 per cent of what the Supreme Court deals with is procedural disagreements that is only of any real interest to lawyers."
Well, except when your city wants to condemn your home to make way for a pharmaceutical company that can pay more property tax. The Supreme Court said that's fine, by the way. See Kelo v. City of New London.

I have no doubt that Obama's pick will be political. I think it would be nice if the person was also somewhat practical. I find Scalia's comment to be par for the course for Scalia, and maybe for many of the other justices. It's as if they have no realization that their decisions actually affect people's lives. I think someone not living in an Ivory Tower might be positive. Of course, there are limits, but it's not as if the Supreme Court is apolitical.

Randy said...

Under normal circumstances, no one his or her right mind would pick Souter. But circumstances weren't normal and neither was Souter. So he was picked.

John Maszka said...

Ann,
Whoever President Obama picks, it should be someone who understands the gravity of the appointment.

I'm conducting research on how American foreign policy affects popular support for terrorism. This research project (RP) involves a worldwide survey to measure popular support for terrorism. It is inspired by the overall abuse of power pursued by the George W. Bush administration precisely at a time of ever-increasing demand for international cooperation and diplomacy. This RP maintains that the Bush administration’s foreign policies of unilateralism, preemption, and military hegemony (commonly referred to as the Bush Doctrine) represent a radical break from traditional American foreign policy. It further asserts a correlation between popular support for terrorism and a strong dissatisfaction with the status quo as upheld by the global hegemonic power.
Even though the Bush administration is no longer in office, this correlation is still relevant today as, without a clearly articulated Obama doctrine as of yet, we have no indication that American foreign policy will change course anytime soon. More broadly, a correlation between oppressive American foreign policy in general and popular support for terrorism would be of great interest to international relations (IR) scholars of all theoretical backgrounds— as America is the global hegemon. And for this reason, American foreign policy has a tremendous impact on the rest of the world. It can be used to secure peace and prosperity in the world (and along with it American credibility and legitimacy), or it can give rise to anti-American coalitions, create inefficiency through a loss of international cooperation, and diminish what legitimacy America may still enjoy as the leader of the international community.
During the eight years of the George W. Bush administration, we witnessed the latter at unprecedented levels. With a new administration in the Oval Office, research of this nature can prove invaluable in championing a more benevolent and multilateral American foreign policy in the future. Finally, measuring popular support for terrorism will afford us the ability to construct a model that demonstrates the demographic composition of a society supportive of terrorism versus one that is not. This model, in turn, should provide a method of measuring and predicting 1) the potential for terrorism in any given society, 2) the direction that acts of terrorism tend to be moving in (e.g. westward, eastward, or remaining static), and 3) broad trends in the support for terrorism, such as whether popular support is increasing among moderates, Westerners, and so forth. The survey can be accessed at

http://www.johnmaszka.com/SURVEY.html

Please take a moment and fill out the survey. The long-term goal of this project is to facilitate a more diplomatic American foreign policy in the years ahead.


Thank you!

John Maszka

veni vidi vici said...

"Souter was the Walden of our time.

Love him."

"He was the Walden of our time? Hmm, I didn't know that Walden was an autobiography."


I think he meant that Souter was the Waldo of our time. After all, how many times did you ever actually see the guy over the past 20 years?

mccullough said...

I've no doubt that Souter was a better Justice than whoever Obama appoints.

As for empathy, I feel sorry for that dyslexic white fireman in New Haven who scored high on the test the city threw out. So white guy should win that suit.

Just like I felt sorry for that single white mom and her little white boy who had such a long commute to public school in Louisville. Glad white boy won that suit, too.

Chief Justice Roberts is very empathetic. He understands what he means to work hard and be white.