Goodbye to Justice Souter.

I'm seeing "David H. Souter, Republican Justice Who Allied With Court’s Liberal Wing, Dies at 85/He left conservatives bitterly disappointed with his migration from right to left, leading to the cry of “no more Souters'" (NYT)(free-access link).

A shy man who never married and who much preferred an evening alone with a good book to a night in the company of Washington insiders, Justice Souter retired at the unusually young age of 69 to return to his beloved home state.... He turned down all the opportunities for foreign travel that other justices accepted eagerly.... No one who had Boston needed Paris, he would say.

"The hospitality we have extended to the Thomases over the years is no different from the hospitality we have extended to our many other dear friends."

"We have been most fortunate to have a great life of many friends and financial success, and we have always placed a priority on spending time with our family and friends."

Said Harlan Crow, quoted in "Lawmakers Call for Tighter Ethics Code After Revelations About Justice Thomas/An investigation by ProPublica revealed that Clarence Thomas accompanied Harlan Crow, a conservative donor and real estate billionaire, on a series of luxury vacations without disclosing them" (NYT).

Could ProPublica — or some other organization (the NYT?) — do the same investigation into the hospitality accepted by the other Supreme Court Justices? Was Clarence Thomas focused on because he was known to be way outside the norm or for political reasons? Anyone who at all likes Clarence Thomas is going to be highly suspicious — if not already convinced — that they're going after him because they already hate him. 

What is the usual experience of visiting wealthy friends and at what point should we object? Do we want monkish judges? I intensely admire the Justice Souter lifestyle. As Sandra Day O'Connor described it:

"So no one should express partisan certainty regarding President Trump’s suggestion that the Supreme Court might well decide that impeaching a president without evidence of high crimes and misdemeanors is unconstitutional."

Writes Alan Dershowitz, surprising me (and I taught the constitutional law relating to impeachment for many years). He writes:

Two former, well-respected justices of the Supreme Court first suggested that the judiciary may indeed have a role in reining in Congress were it to exceed its constitutional authority. Justice Byron White, a John F. Kennedy appointee, put it this way:

"Finally, as applied to the special case of the President, the majority argument merely points out that, were the Senate to convict the President without any kind of trial, a Constitutional crisis might well result. It hardly follows that the Court ought to refrain from upholding the Constitution in all impeachment cases. Nor does it follow that, in cases of presidential impeachment, the Justices ought to abandon their constitutional responsibility because the Senate has precipitated a crisis."

Justice David Souter, a George H. W. Bush-appointee, echoed his predecessor: “If the Senate were to act in a manner seriously threatening the integrity of its results … judicial interference might well be appropriate.”

It is not too much of a stretch from the kind of constitutional crises imagined by these learned justices to a crisis caused by a Congress that impeached a president without evidence of “high crimes and misdemeanors.” The president is not above the law, but neither is Congress, whose members take an oath to support, not subvert, the Constitution. And that Constitution does not authorize impeachment for anything short of high crimes and misdemeanors.

Here's the case he's talking about Nixon v. United States. — about a federal judge named Nixon who challenged the procedure the Senate used to convict him. All of the Justices rejected Nixon's attempted appeal to the judiciary. The Souter and White opinions were concurring opinions. The majority opinion written by Chief Justice Rehnquist (and joined by Stevens, O'Connor, Scalia, Kennedy, and Thomas) stressed the "textually demonstrable commitment" of the issue to the Senate, which is given the "sole Power to try all Impeachments." (The House is given "the sole Power of Impeachment.") Even though that case was about a judge, the Court took into account the special need for finality that would exist in the case of a President:

Limited dance moves.

I've got to get around at long last to showing you this Yale News article, "A sports junkie who ate pasta with ketchup: Law school friends reflect on Kavanaugh’s time at YLS." My favorite part:

Kavanaugh was a “bland eater,” his roommate explained, who never ate his pasta with anything more exotic than tomato sauce or ketchup on top. At visits to Yorkside Pizza following late nights at Toad’s Place — the friends did not go often, Christmas said, as Kavanaugh had “limited dance moves” — the judge’s pizza had to be plain cheese, or sometimes just pepperoni.

A limited diet has been a mark of distinction for admired Justices: "John Stevens... was usually seen eating a plain cheese sandwich with the crusts cut off... Justice David Souter [ate] plain yogurt and the occasional apple."

But limited dance moves?! That's not good enough. Check this out:

I'm so enjoying rooting for Dershowitz in this ongoing Tribe vs. Dershowitz tweet fight.

And here's a new Dershowitz column, "Trump doesn't need to fire Mueller - here's why."

[A]ttacking Mueller may appear to be a win-win tactic for the [Trump legal] team – certainly a lot better than firing Mueller. Fortunately for the Trump team, Mueller has played into their hands by his sloppiness in conducting the investigation. He has been incautious with his choice of personnel – too many of them seem biased against Trump, not only by their backgrounds, but by their tweets and messages.... Moreover, the manner by which he acquired emails and other documents from the Trump transition team may raise some legal questions. The same may be true if he used the questionable dossier against Trump as a basis for securing warrants....

Mueller can improve his situation in several ways. First, he should appoint an ethics expert to advise him – a former judge who is beyond reproach. Names like George Mitchell, Louie Freeh, and Justice David Souter come to mind....

As James Madison wrote in Federalist 51 “Perhaps everyone will agree that if we were all angels, no state would be necessary, and if angels were the governors, they would require neither internal nor external constraints to ensure that they governed justly.” Neither the Trump team nor the Mueller team are angels. They are human beings with human limitations. But an investigation of a president must be as close to angelic as any human endeavor can be. Otherwise the public will not have confidence in the results.

Glenn Loury and I resist the resistance to Trump.

In this hot new episode of Bloggingheads (recorded on Friday), Glenn Loury objects strenuously to the effort to treat Trump as abnormal, and I agree. Despite that basic agreement, we find a lot to talk about:



The tags indicate the range of subject matter. The topics listed at the BHTV website are:

The “normalizing Trump” debate
Trump’s desire to keep judges “in check”
Political posturing around Gorsuch and Garland
Should judges infer that Trump wants a Muslim ban?
Glenn defends the Shelby County ruling on voting rights
Ann defends Citizen’s United

"To read Trump correctly, it’s probably best to dig up old French deconstructionists like Jean Baudrillard..."

"... who treated words not as things that have meanings in themselves but as displays in an oppositional power struggle. Trump is not a national leader; he is a national show. If this is all true, it could be that the governing Trump will be a White House holograph. When it comes to the substance of actual governance, it could be that President Trump is the man who isn’t there."

David Brooks is back from vacation and ready to cogitate for your delectation.

Deconstruction! Holographs!

The Coen Brothers made a movie "The Man Who Wasn't There":



I haven't seen the movie but that trailer begins with a close-up of barbering and a voice-over naming various hairstyles, ending with "the executive contour" (at 0:13). That brought back a dream I had last night. I was advising Donald Trump to restyle his hair. It shouldn't come forward over his face. I saw him with the new hairstyle. It was — it seems now — The Executive Contour.

But "The Man Who Wasn't There" is more familiar as an old poem, "Antigonish" (from 1899 by William Hughes Mearns):

Yesterday, upon the stair,
I met a man who wasn't there.
He wasn't there again today,
I wish, I wish he'd go away...

When I came home last night at three,
The man was waiting there for me
But when I looked around the hall,
I couldn't see him there at all!
Go away, go away, don't you come back any more!
Go away, go away, and please don't slam the door...

Last night I saw upon the stair,
A little man who wasn't there,
He wasn't there again today
Oh, how I wish he'd go away...

That poem was cited by Justice David Souter in the Supreme Court case about voter I.D. laws:

The State responds to the want of evidence [of the kind of fraud that the law would remedy] with the assertion that in-person voter impersonation fraud is hard to detect. But this is like saying the “man who wasn’t there” is hard to spot....

The Man Who Wasn't There should not be confused with The Man Who Never Was, an invented persona assigned to a real human corpse and used to trick the Nazis in WWII — otherwise known as Operation Mincement:

To reinforce the impression of Martin being a real person, Montagu and Cholmondeley provided collaborative details to be carried on his person – known in espionage circles as wallet or pocket litter. This included a photograph from an invented fiancée named Pam; the image was of an MI5 clerk, Jean Leslie. Two love letters from Pam were included in the pocket litter, as was a receipt for a diamond engagement ring costing £53, 10s 6d from a Bond Street jewellery shop. Additional personal correspondence was included, consisting of a letter from fictitious Martin's father – described by Macintyre as "pompous and pedantic as only an Edwardian father could be" – which included a note from the family solicitor, and a message from Lloyds Bank, demanding payment of an overdraft of £79 19s 2d.

Here's the delightful "Pam":

"It's a paler place without" Scalia, said Justice Ginsburg.

"Paler. Because he was a wonderful storyteller. He had an uncanny ability to make even the most somber judge smile."

Also:

When asked about Hillary Clinton potentially stacking the court with liberal justices, Ginsburg said she resisted "the notion that, if you are a Democrat, then you are 'liberal.'"

"Just think of John Paul Stevens appointed by President Ford, then Souter appointed by the first President Bush," she said. "They were not 'conservative.'"

I'd like to see the whole quote, but 2 examples of Republicans who turned out not to be conservative does not make me think it's at all likely that Democrats will turn out not to be liberal. When's the last time that happened? Felix Frankfurter?

What Linda Greenhouse emailed me about what I blogged about what she wrote in The NYT about Justice Kennedy.

On Tuesday, I wrote a post titled "Linda Greenhouse notes the 'dry, almost clinical tone' and lack of 'poetry' in the Supreme Court's pro-abortion-rights opinion."

I quoted her writing:

The dry, almost clinical tone could scarcely be more different from the meditative mood the Supreme Court struck the last time it stood up for abortion rights, in Planned Parenthood v. Casey, 24 years ago this week. “Liberty finds no refuge in a jurisprudence of doubt” was Justice Anthony M. Kennedy’s mysterious opening line in that opinion.

And, among other things, I said:

And Greenhouse misstates the authorship of Casey. She wasn't quoting an opinion for a majority of the Court that was written by Justice Kennedy, but an opinion announcing the judgment of the Court that was joined by only 3 Justices and that was written not by Kennedy alone, but by Kennedy along with Sandra Day O'Connor and David Souter. However that "poetry" was created, only 1/3 of the "poets" remain on the Court.

It's indisputably true that the opinion Greenhouse quoted was published under those 3 names with no one Justice identified as the author. But I received an email from Linda Greenhouse that said:

Ann, fyi, Kennedy wrote the line in Casey that I attributed to him.  Yours, LG

I wrote back:

Is there a citation for that? 

And:

Shouldn't the article state your reason for attributing that line to him, as opposed to saying that it's how the opinion begins, as if he isn't one of 3 authors? Are you relying on extraneous knowledge? If so, shouldn't you say that in the article as oppose[d] to citing the opinion?

Here's Greenhouse's reply:

Jeffrey Toobin, "The Nine," p. 65. But Ann, I'm afraid you confuse the practice of journalism with writing for a law review. There is no convention that requires me to annotate my factual assertions. In any event, when Casey was handed down on June 29, 1992, each of the triumvirs read from the part of the joint opinion that he/she had written. Kennedy led off and started his oral announcement with "Liberty finds no refuge..." (causing a good deal of confusion in the courtroom, as you may imagine, since no one yet knew the bottom line of the case.) Souter read from his stare decisis portion, and O'Connor from her undue burden analysis. The authorship of each portion was clear from that public performance. Perhaps you were not in the courtroom.  I was.  Consequently it would have been completely superfluous for me to write: "As Jeffrey Toobin later reported..." Of course you are completely free to trash my opinions and my writing style.  I would caution you against challenging my facts. Yours, Linda

I responded:

I'm not saying you need a law review style citation, only that when you refer to the opinion — "the Supreme Court ..., in Planned Parenthood v. Casey" — and then say only "'Liberty finds no refuge in a jurisprudence of doubt' was Justice Anthony M. Kennedy’s mysterious opening line in that opinion," you appear to be referring to the opinion, which has three authors, and crediting only one of them.

I don't mind that you might choose to make an additional factual assertion without specifying how you know, but the text doesn't make an assertion that we know Kennedy alone wrote a particular sentence in the joint opinion. It just refers to the opinion and gives Kennedy sole credit for it, erasing the presence of O'Connor and Souter.

I'd like to add your explanation in an update, with your permission.

And she said:

Sure.

So there you are. What do you think? I've been cautioned against challenging Linda Greenhouse's facts — I thought we weren't entitled to our own facts — but I've got to say I don't think she's actually afraid that I confuse the practice of journalism with writing for a law review. I think it would be comforting, not fearsome, for me to have merely bumbled into a state of confusion about the difference between journalism and law reviews. Oddly, I'm not writing a law review article at all. Indeed, I eschew the practice. I'm blogging, and blogging is not a place to feel warned off challenging what people write in The New York Times. Nor is it a place for reining in criticism because there happens to be a "convention" within the journalism profession.

And I will be picky. To say "There is no convention that requires me to annotate my factual assertions" is not to say that there is a convention that requires her to refrain from annotating her factual assertions, and I continue to think that the problem was not so much the failure to support the assertion (to say how she knows Kennedy wrote that particular line) but the failure to make the assertion, to say that something is known about Kennedy and that she is not merely making a reference to the published opinion.

Sidenote: The word "triumvirs" is interesting in light of my concern about erasing O'Connor. "Triumvirs" means 3 men sharing an official position. (Toobin, by the way, used the word "troika" in the same context. "Triumvirs" harks back to ancient Roman leaders, the triumvirate. "Troika" gestures at Russian carriages with 3 horses.)

Anyway, whether one is in the courtroom when the Justices read from the writings they release to the public, it's a matter of opinion to say "The authorship of each portion was clear from that public performance." A joint opinion was released, and any reading needed to be done by one individual and not a chorus of 3.

No one said I'm reading the part that I wrote. I know that, even though Greenhouse guessed right and I was not there that day in 1992, but like everyone else on the internet, I can listen to the recording of the public performance at Oyez.com. Whatever feels clear within Greenhouse's memory, the fact is, it wasn't Justice Kennedy who "led off," it was Justice O'Connor. And when Kennedy got his turn, he did not — as Greenhouse put it — "start[] his oral announcement with 'Liberty finds no refuge....'"

I'm listening to the announcement recording and reading and searching the transcript, and it doesn't begin with or even contain the sentence "Liberty finds no refuge in a jurisprudence of doubt." That's how the written opinion begins, but Greenhouse seems to have constructed a false memory of what she experienced in her privileged position in that courtroom a quarter century ago.

I know! I've been cautioned against challenging her facts. But I've got to do it. I've got the transcript.

The Justices don't read the written opinion when they do the announcement live. They've got a different text, and the drama of "Liberty finds no refuge in a jurisprudence of doubt" is confined to the written opinion. Justice O'Connor — who went first, not last — did not indulge in any mystifying phraseology. If the audience felt confused at first, I suspect it was only because O'Connor stated that the court below was (mostly) affirmed, which meant that Planned Parenthood had lost, before she got to the straightforward "we conclude that the central holding of Roe should be reaffirmed."

O'Connor said that "Justice Kennedy and Justice Souter will have -- also have something to say about the judgment in these cases," and not that Kennedy and Souter will be talking about the part of the opinion they wrote. Kennedy's speaking begins with the workmanlike sentence: "The -- the essential holding of Roe versus Wade, the holding that we today retain and reaffirm has three parts." Further in, he's more high flown. And he does read the line from the opinion that I said, in my blog post, was the most poetic line in the case: "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." Perhaps that line was special to him, something he wanted to say out loud, but I don't, from that, feel that he's claiming personal authorship.

Greenhouse says "The authorship of each portion was clear from that public performance," and Greenhouse thinks O'Connor wrote the undue burden analysis, but Kennedy's recitation covered that material. So much for being there. I'm going to believe the transcript and listening to the recording, as any sensible person, including Greenhouse, will.

Now, what about Toobin? Toobin did talk to some of the Justices for his book "The Nine: Inside the Secret World of the Supreme Court" — though, as David Margolick wrote in his review, readers are left "to ponder which of those justices talked to him for this book, and which did not."

And talk to him some of them clearly did. Without their off-the-record whispers, there would be no “inside” story of any “secret” world to tell in “The Nine: Inside the Secret World of the Supreme Court.”

Margolick guesses who talked:

Reading Toobin’s smart and entertaining book, these hunches quickly solidify. Sprinkled throughout are quotes, facts, anecdotes, insights and interior monologues that could only have come from particular justices — most conspicuously, O’Connor, Breyer and Kennedy — along with flattering adjectives about each. Toobin, of course, never names names.

Here's the relevant bit about Casey, which does trace the "Liberty finds no refuge" quote to Kennedy. (Click to enlarge.)



So Toobin, based on his secret sources, refers to "Kennedy's section of the joint opinion" as containing the quote "Liberty finds no refuge in a jurisprudence of doubt." Maybe somebody who really knows told Toobin the truth and Toobin accurately reported it. But the Court released a joint opinion, and there's something deeply disturbing about letting Toobin and his secret sources supersede the Court's public, written presentation. At least let us know that's what you're doing. If you just say you're talking about Planned Parenthood v. Casey, that's a 3-Justice opinion in my book, which is volume 505 of the United States Reports.

"Healthy Justice Louis Brandeis every day ate one spinach leaf between two slices of whole wheat bread..."

"... whereas Justice Harlan Stone consumed platters of French cheeses with paired wines... Justice David Souter would eat for lunch 'just… plain… yogurt,' Ginsburg said with perfect delivery. Sotomayor added that sometimes he would have an apple, but Ginsburg maintained that the apple came later in the afternoon..... [T]he Justices eat together when one of them is celebrating a birthday; Chief Justice John Roberts will often bring a bottle of wine on those days... Ginsburg recalled the various foods hunted and prepared by their 'dear colleague,' the late Justice Antonin Scalia: fish, fowl, even 'Bambi,' she joked fondly. Sotomayor told a story in which Justice Stephen Breyer decided to serve his grandchildren pheasant, which Scalia had recently bagged. Afraid that pellets might still be in the bird, the children refused to eat it."

Link.

Justice Ginsburg gently corrects those who heard her previous remark as a confession of drunkenness at the SOTU.

"Oh — what I meant was that I had a glass of wine with dinner... And that on top of having stayed up all night. I was writing something.... [My] pen was hot."

Sometimes, Justice Ginsburg has just been working so hard and long that she conks out. You would have conked out long before, no doubt. She stayed up all night — and she worked all the previous day, through the night and through the day of the long, boring speech — and she was sitting in a comfortable chair and not able to stretch or fidget.

She tells us that in the old days, Justice David Souter sat next to her and "he was sensitive to my, well, he couldn’t, he could sense when I was beginning — my head was beginning to lower. So he would give me a pinch."

Now that the dear, sweet, sensitive David is gone, she's got to sit between Justices Breyer and Kennedy, and they just don't know how to minister to her precise needs the way David did. They are "reluctant." They may give her "a little jab, but it wasn’t enough."

The jabs of Breyer and Kennedy cannot replace the pinches of Souter.

BY THE WAY: I got it right the first time.

Justice Souter "sort of got the joke about being a Supreme Court Justice."

Says Jeffrey Toobin.

He didn't have an answering machine on his phone. He was late for William Rehnquist's funeral because they couldn't leave a message and find out where he was. He doesn't like electric lights to read. He moves his chair around his office over the course of the day for the sunlight. But the great thing about Justice Souter is that he sort of got the joke about being a Supreme Court Justice and he understood that he was important but it wasn't all about him.

Which might explain his graceful retirement. I sometimes wonder about those Justices who hang on for decades and into extreme old age. Why don't they think there should be more rotation of new individuals into those chambers?

Toobin's new book is "The Oath: The Obama White House and the Supreme Court." It's full of interesting material.  I'm enjoying it.

How can the Supreme Court escape from the perception that it's partisan?

Lawprof Barry Friedman is working on the theory that people have lost trust in the Court (or so the polls show) because they perceive the Court as political. (Friedman stresses that politics is different from ideology, ideology being something one actually believes in.)

Okay, so if the Court cares about the public's disapproval and wants to do something about it — which would be, ironically, political — then the Court should work to deflect the perception that it is political.

Well, then, the question becomes why do people perceive the Court as political? One answer is: Because it is political. In which case, people should be congratulated for their perceptiveness. Nice going, people. You are not dupes. But that's me saying that.

What Friedman is saying is that certain cases are making people see the Court as political. What cases?

Justice Stevens: "that was the day I decided to resign... I learned giving that talk that I had a speech problem."

"That talk" = the announcement of his dissenting opinion in Citizens United, which you can listen to here.

From an interview published today in The Atlantic.

Stevens said he retired because, while he still loved the job of judging, he had no desire to linger beyond his physical prime. He had witnessed the final years on the bench of [William O.] Douglas, Thurgood Marshall and others who should have retired earlier for health reasons. A few years ago, he secretly asked Associate Justice David Souter to tell him when it was time for him to go. But Souter left first, in 2009.

"When he retired, I knew I didn't have any safety valve anymore."

The suggestion, as I read it, is that Stevens had to judge himself strictly because he didn't have Souter to reassure him that the time to go had not yet arrived. (How can you tell if you've lost your mental powers?)

Why Souter was a unique confidante, the interviewer did not ask.

“Neither Steve Breyer nor Ruth Ginsburg has much of a purchase on Tony Kennedy’s mind.”

That's actually the most embarrassing sentence in Larry Tribe's letter to Obama about who to nominate to the Supreme Court.

I love the use of the noun "purchase," meaning, not something you buy, but "A means of increasing power or influence" or "An advantage that is used in exerting one's power." That's the 5th definition of the noun in the 3d edition of the American Heritage Dictionary. Here are some other, related definitions:

2. A grip applied manually or mechanically to move something or prevent it from slipping.

3. A device, such as a tackle or lever, used to obtain mechanical advantage.

4. A position, as of a lever or one's feet, affording a means to move or secure a weight.

You get the idea of the image Tribe had of Kennedy's brain? If you read the whole letter — PDF — you'll see that Tribe thought Justice Souter had "purchase," and he was worried that without Souter, Kennedy would roll toward the "Roberts/Alito/Scalia/Thomos wing of the Court." He thought Elena Kagan — and not Sonia Sotomayor — would operate — as a tackle or lever? — to move "Tony Kennedy's mind."

Kagan, Tribe said, had a way of "gently but firmly persuading a bunch of prima donnas to see things her way in case after case." Of course, he was referring to the prima donna professors at Harvard Law School, and mainly talking about new faculty appointments, which is quite different from persuading Supreme Court Justices about interpretations of law. It's one thing to build a law school community where professors can spout diverse ideologies and still feel like it's a happy, functioning institution. It's quite another to amass votes for a legal proposition that produces an outcome in a case and binds all the courts in the United States.

And if the target of a light touch knows that the most powerful man in the world has selected that approach to prying his brain into a particular political direction, that target ought to become highly vigilant and not get played.

... I think it's clear that a Justice Kagan would be a much more formidable match for Justice Scalia than Justice Breyer has been... in the kinds of public settings in which it has been all to easy for Scalia to make his rigid and unrealistic formalism seem synonymous with the rule of law and to make Breyer's pragmatism seem mushy and unconstrained by comparison.

Tribe says Kagan will be "simultaneously progressive yet principled, pragmatic and yet constrained." That sounds like pragmatism. How does it not "seem mushy" like Breyer's pragmatism? Because it's asserted to be "constrained," while Breyer's pragmatism "seem[s]... unconstrained"? Because it's progressive — steadily aimed in one direction and not more subtly varied?

I'm sure Justice Kennedy doesn't need to be tipped off to this political scheme to clamber over the crusty crags of the convolutions of his brain. But Tribe's letter is amusing reading nonetheless.

"In Kagan, it seems to me we have reached a new level of utter blankness."

Says Andrew Sullivan:

Her entire career has been about never taking a stand on anything of any substance - free coffee for students! - while networking in a way to neutralize any conceivable opposition. And she is walking back from her earlier demands for more clarity and transparency in Senate confirmation hearings. Josh notes that liberals are worried about an Obama Souter.

Souter was the old level of utter blankness.

I just don't believe that Obama is that prone to risk.

That should mean that Obama secretly knows what she's about and is hiding it from us. But that wouldn't make Kagan an "Obama Souter." Souter was appointed by a President — George H.W. Bush — who thought he was getting something quite different. Here's a New York Times article from the time of the Souter nomination (before his ascension to the Supreme Court):

John H. Sununu, the White House chief of staff, said today that he had assured President Bush that David H. Souter would uphold conservative values on the Supreme Court.... 

''I was looking for someone who would be a strict constructionist, consistent with basic conservative attitudes, and that's what I got,'' the chief of staff said in an interview. ''I was able to tell the President that I was sure he would do the same thing when he encountered Federal questions....

The chief of staff's comments were designed to advance the overall White House strategy of seeking to convince conservatives that Judge Souter was their kind of man, who could be trusted to vote ''right'' on the big issues, without getting him involved in fierce debates about abortion or flag burning or other contentious specifics.

In being unusually candid about the details in the selection process, Mr. Sununu was carrying out his role as Mr. Bush's primary liaison to the right wing of the Republican Party and to the ideological groups that support Mr. Bush but are nervous about the commitment to their issues.

Back to Sullivan:

I predict that if confirmed, [Elena Kagan is] much more likely to surprise on the left than on the right...

That would be Souterific.

If Justice Stevens retires, won't Obama need to appoint a Protestant?

I know people have trouble looking at the issue of religious diversity on the Supreme Court. I raised this question when Justice Souter stepped down, and Obama's nomination put a 6th Catholic on the Court.

Here I am on a May, 4, 2009 Bloggingheads with Emily Bazelon, raising the question question of religious diveristy in the wake of the Souter retirement. (This recorded on May, 4, 2009 , before Obama had nominated Sotormayor.)



Now, Justice Stevens is the only Justice who was raised in the Protestant tradition. The other 2 Justices are Jewish. I anticipate that there will be little discussion of this, but I find it hard to believe that Obama will not see the lack of diversity as a problem and choose a Protestant.

Justice Souter has kept a lifelong diary, and he's donated it to the New Hampshire Historical Society.

We'll be able to read it... in 50 years.

I don't know if I can live that long. I'm going to try. In the meantime, please imagine some Souter diary items.

Senator Grassley: Sotomayor "doesn't have a clear role of what the Supreme Court is."

Doesn't have a clear role of what the Supreme Court is?

He can't talk right, but he has a vote, and he's voting against Sonia Sotomayor.

Grassley said his vote in part is based on second thoughts he has had about Souter, confirmed in 1990.

"I can say my vote for him is probably the only vote for 11 or 12 Supreme Court justices that has come back to haunt me from time to time," Grassley said. "I think Judge Sotomayor's very lukewarm answer that she gave me left me with the same pit in my stomach I had as a result of my vote for Souter."

Pit in my stomach? Oh, good lord, he really can't talk right. From Common Errors in English:

Just as you can love someone from the bottom of your heart, you can also experience a sensation of dread in the pit (bottom) of your stomach. I don’t know whether people who mangle this common expression into “pit in my stomach” envision an ulcer, an irritating peach pit they’ve swallowed or are thinking of the pyloric sphincter; but they’ve got it wrong.

So, Sotomayor either does or does not make judicial decisions emanating from empathy and Wise Latina experience, and Grassley feels his decisions in his stomach and when they feel like the part of a fruit that he shouldn't have eaten — or when he's haunted — he votes no.

Does anybody have a clear role about anything anymore?

That strip search was unreasonable — and unconstitutional — but it was not unreasonable for the school authorities not to know that.

Said the Supreme Court today in Safford Unified School District v. April Redding:

"What was missing from the suspected facts that pointed to Savana was any indication of danger to the students from the power of the drugs or their quantity, and any reason to suppose that Savana was carrying pills in her underwear," Justice David Souter wrote in the majority opinion. "We think that the combination of these deficiencies was fatal to finding the search reasonable."...

The court also ruled the officials cannot be held liable in a lawsuit for the search. Different judges around the nation have come to different conclusions about immunity for school officials in strip searches, which leads the Supreme Court to "counsel doubt that we were sufficiently clear in the prior statement of law," Souter said.

School officials enjoy immunity from lawsuits for damages when the case law isn't clear enough that they should have known what they were doing is unconstitutional. Presumably, this case makes it clear now, and school officials can't be looking for drugs in a girl's panties unless they've got more information about the power and the quantity of the drugs and some reason to think the drugs are in the panties — more information than the accusation from another student that the girl had given her drugs.

Justices John Paul Stevens and Ruth Bader Ginsburg disagreed with the part about immunity, and Justice Thomas, standing alone, disagreed that the search was unconstitutional:

"It was eminently reasonable to conclude the backpack was empty because Redding was secreting the pills in a place she thought no one would look," Thomas said.

Thomas warned that the majority's decision could backfire. "Redding would not have been the first person to conceal pills in her undergarments," he said. "Nor will she be the last after today's decision, which announces the safest place to secrete contraband in school."

Thomas leads the pack in deference to school authorities. Remember Morse v. Frederick, the "Bong Hits for Jesus" case? There, dealing with free speech rights, he wrote:

In light of the history of American public education, it cannot seriously be suggested that the First Amendment “freedom of speech” encompasses a student’s right to speak in public schools. Early public schools gave total control to teachers, who expected obedience and respect from students. And courts routinely deferred to schools’ authority to make rules and to discipline students for violating those rules. Several points are clear: (1) under in loco parentis, speech rules and other school rules were treated identically; (2) the in loco parentis doctrine imposed almost no limits on the types of rules that a school could set while students were in school; and (3) schools and teachers had tremendous discretion in imposing punishments for violations of those rules....

To be sure, our educational system faces administrative and pedagogical challenges different from those faced by 19th-century schools. And the idea of treating children as though it were still the 19th century would find little support today. But I see no constitutional imperative requiring public schools to allow all student speech. Parents decide whether to send their children to public schools.... If parents do not like the rules imposed by those schools, they can seek redress in school boards or legislatures; they can send their children to private schools or home school them; or they can simply move. Whatever rules apply to student speech in public schools, those rules can be challenged by parents in the political process.