“They All Look Alike?”

 Right wing attacks on Judge Sotomayor as “reverse racist” have not only been ridiculous, but exposed their own racism in BOLD letters.  There was convicted Watergate felon G. Gordon Liddy using his radio show to call Judge Sotomayor a racist for belonging to the National Council of La Raza, the largest Latino/a civil rights organization in the nation.  He incorrectly said that La Raza means “the race.” Not really.  It means “people,” without any of the negative overtones of the English word “race,” just as the English term “folk” doesn’t have the negative connotations of the German word “volk.” But in the process of making this slur, Liddy not only mistranslated, but referred to the Spanish language as illegal alien.  Liddy also worried about Sotomayor’s menstrual cycle on the bench! (That should unite women everywhere on her side!)

Then there was former Rep. Tom Tancredo (R-CO), whose presidential campaign last year brought anti-immigration xenophobia to new lows, who referred to La Raza as “Hispanic KKK without the hoods!”  Pat Buchanan, who helped Richard Nixon design the race-baiting “Southern Strategy” for winning the presidency by courting racist whites fleeing the Democratic Party after it embrace human rights, uses the most offensive terms to refer to Judge Sotomayor.  Others incorrectly referred to her as a single mother (because all Puerto Ricans are, right?).  Newt Gingrich called her “racist Latina woman” on Twitter—but now tries to take that back. (Newt Gingrich repeatedly played the race card as Speaker of the House.)

But now the rightwing rag, The National Review, takes the cake.  The cover story is of Judge Sotomayor  and makes fun of her remark (repeatedly taken out of context) about “a wise Latina.” But why does the cover paint Judge Sotomayor as an Asian Buddhist?  Do all non-whites look alike to the editors of the National Review?

P.S. The charges that Judge Sotomayor is a racist are completely undermined by an examination of her record. SCOTUSblog examined every case of racial discrimination that came before Judge Sotomayor and found that she denied discrimination 80% of the time.

Law & Theology Degrees

In our complex world where religion, philosophy, law, and public policy all often overlap, there is a need for ministerss with legal training and lawyers with training in religious studies or theology.  For instance, my friend, J. Brent Walker, the Executive Director of the Baptist Joint Committee on Religious Liberty, is both a lawyer and a minister. (I met Brent when we were both M.Div. students at the once great Southern Baptist Theological Seminary, pre-fundamentalist takeover.  Brent managed to earn both a B.A. and M.A. from the University of Florida (Gainesville) without having his brains turned to mush–something almost incomprehensible to a Florida State University (Tallahassee) alumnus like me. 🙂 Then he earned his law degree (J.D.) at Stetson University School of Law before earning his M.Div. at SBTS. )

So, at least here in the U.S., some institutions have begun to offer joint religion/law or theology/law degrees.  Here are a few of the better ones for those interested.  I have not ranked them in any particular order.

Wake Forest University has two programs involving joint degrees from the WFU Law School and WFU Divinity School.  One is a joint J.D./M.A. (Religious Studies) degree and the other is a joint J.D./M.Div. degree.

Emory University Law School has three joint degrees in its “Law and Religion” Program, all involving the juris doctor law degree.  Two of these joint degrees, the J.D./M.T.S. (Master of Theological Studies), and the J.D./M.Div. (Master of Divinity–the basic seminary degree for ordination in most denominations in the U.S., equivalent to the B.D. in Commonwealth nations), are run jointly with the Law School and Emory’s Candler School of Theology.  The third joint degree, the J.D./Ph.D. (Doctor of Philosophy in Religion) is conducted jointly with Emory University’s Graduate Division of Religion in its Graduate School of Arts and Sciences.

Duke University Law School offers a J.D./M.A. joint degree in numerous studies, including religion, through the Graduate School.  It also offers the J.D./Ph.D. in either philosophy or political science.

The University of Southern California’s Gould School of Law offers a joint J.D./Ph.D. program in Religion and Social Ethics that is VERY strong.

If anyone knows of other joint law and theology programs, please let me know.

Update:  From the comments:

Vanderbilt University Law School also offers both joint J.D/M.Div and J.D./M.T.S. degrees in conjunction with Vanderbilt University Divinity School.

A Master of Divinity and Law degree is jointly offered by Louisville Presbyterian Theological Seminary and the University of Louisville’s Brandeis School of Law (named after the famed Supreme Court justice Louis B. Brandeis).

Baylor University offers a unique program through its J.M. Dawson Institute for Church-State Studies which I hesitated to include because they do not include a law degree, but the interdisciplinary degrees offered at both the M.A. and Ph.D. levels involve work with theologians, jurists and legal scholars, sociologists, historians, and political scientists.  It is truly unique.  (The Dawson Institute also  publishes the great Journal of Church and State which, long ago, published my first academic writing–an article on Bonhoeffer and Human Rights.  It has since published two  other of my articles and hasn’t seemed to suffer too much in circulation as a result. 🙂 ) Although named after the great Baptist J.M. Dawson, a very strict church-state separationist, the institute’s scholars include those of a more “accomadationist” outlook and publish and encourage debate between widely differing views of church-state relations (since it is an educational institution and not an advocacy group).  It includes the Center for Constitutional Studies and the Islam and Democracy Project and it works closely with Baylor’s Center for Jewish Studies (which used to be called the Center for Jewish and American  Studies).  (Yes, a Baptist university in deep Texas is the first explicitly Christian university in North America to have a Center for Jewish Studies–run by Jewish theologian Marc Ellis.  Ellis is not a Jewish Christian, but an orthodox Jew–but he is nevertheless controversial because in his strong push for Middle East peace he has been far more critical of the State of Israel than is common among Jewish theologians.  He has also said that some version of “Holocaust theology” have ended up justifying the occupation  and oppression of Jewish people.  Obviously, Baylor did not appoint Ellis in an attempt to stave off controversy!)

I have not listed them here, since I am mostly fascinated by the  intersection of religion/theology, law, and politics, but many law schools list other kinds of dual degrees, including dual degrees in law and business, law and social work, law and political science, law and public health, and law and medicine.  (The brains it would take to earn a joint J.D./M.D. degree floors me!)

Obama Nominates Judge Sonia Sotomayor to SCOTUS

Well, I was wrong.  The conventional wisdom said that Obama would pick a Latina, adding another woman and the first Hispanic to the Supreme Court of the U.S. in one fell swoop–and the only person fitting such a description that also had the legal qualifications and experience was Judge Sonia Sotomayor of the 2nd Circuit of the U.S. Court of Appeals.  So, she was widely rumored as a frontrunner and the right actually began a whisper campaign against her the moment that Justice David Souter announced his retirement at the end of this term of the Supreme Court–before anyone was nominated.

 

But I was convinced that Judge Sotomayor was too obvious a choice.  Obama has picked surprising people to fill his cabinet posts (people are STILL surprised that he picked his arch-rival Hillary Clinton to become Secretary of State!) and, althought he has sought major diversity, has never picked just to have an affirmative action choice.  I thought he certainly wanted someone who was NOT an appellate judge, but a working politician.  So, I thought Gov. Jennifer Granholm (D-MI) of Michigan had  the inside track.  Also, despite the screams of the right, Judge Sotomayor is fairly centrist–not much more liberal  than Justice Souter whom she’d be replacing, and so I thought Obama would save her for replacing a conservative–that he would pick a strong liberal to replace Souter.

I was wrong.  Judge Sotomayor is the nominee. Obama wants her confirmed before the August recess of Congress, so that she will be ready to go when the SCOTUS begins its fall term on the first Monday in October.  I think the GOP will try to drag it out to September, but I don’t think they have the votes to block her confirmation.  She was nominated first for the federal bench by Pres. George H. W. Bush and then elevated to the 2nd Circuit Court of Appeals by Pres. Bill Clinton. So, Judge Sotomayor has twice been confirmed by the senate already.  Seven (7) Republican senators voted for her confirmation in ’97.  So, it will be hard to keep her off the Supreme Court.  But the Right is already trying.  The confirmation hearings will be nasty.

My one real concern is that with Sotomayor, 6 of the 9 SCOTUS justices will be Catholic.  The remaining 3 will be two Jews and one Protestant (John Paul Stevens, the oldest Justice serving).  In a country where Protestants are still a plurality, if no longer a strict majority, this is a very Catholic-dominated court.  There are 11 Catholics who have been on the SCOTUS in U.S. history–and 5 of those 11 are still serving.  This worries me some on church-state issues where Catholics have tended to support positions that I would consider violations of the 1st Amendment’s ban on all laws “respecting an establishment of religion.”  I haven’t seen an analysis of Judge Sotomayor’s church–state decisions but would like to do so. 

Obama is likely to have 1-2 more Supreme Court picks this term and, if he is reelected, at least 1 more pick in his 2nd term.  I hope the others are more liberal and are not Catholic.

Bio:  Judge Sonia  Sotomayor is 54.  Her parents came from Puerto Rico during WWII and both were working class people.  She grew up in the Bronx, NY and first became interested in the law as a girl reading “Nancy Drew” mysteries.  When she was diagnosed with childhood onset diabetes at age 8, she was told that diabetics did not have the physical stamina to become police officers or private investigators (not true). So, she became a judge.  She graduated from Princeton University in 1976 summa cum laude.  (So much for those who claim she is not intelligent!) She then graduated from Yale University Law School in 1979 after serving as editor of the Yale Law Review.  She has been a NYC prosecutor and a civil litigator for international corporations operating in the U.S.  She has been a trial judge and, when replacing Souter, will be the only member of SCOTUS who has served as a trial judge.  She has been a state appellate judge (appointed in 1991 by Pres. George H.W. Bush) and a Circuit Court appellate judge (appointed in 1997 by Pres. Bill Clinton).  Her name was previously floated as a replacement for Justice Sandra Day O’Conner when she retired from SCOTUS in ‘ 05.

This article shows convincingly that, although the rightwing noise machine will complain loudly about her nomination, they don’t have the votes to prevent her from being confirmed (or even to filibuster her nomination) –unless a major scandal would be uncovered (highly unlikely).  And Republican Senators like Mitch McConnell are on record as opposing the filibustering of judicial nominees–calling it obstructionist.  This won’t prevent them from reversing themselves now, but we can show them to be absolute hypocrites when they do reverse themselves.

Update:  The Senate Judiciary Committee  has just released its questionaire for Judge Sotomayor.  After she has filled it out, they will release her answers.  I indicated my questions for any replacement for Souter here.

Sen. Dodd Supports Investigations and Trials for Torture

Sen. Chris Dodd (D-CT)’s father was one of the U.S. prosecutors in the Nuremberg trials. He reminds bloggers in this youtube video that the trials were originally unpopular. Because of the rise of the Cold War, many people in Europe and the USA wanted to ignore the German atrocities in order to present a united front against the Eastern Bloc.  But when they saw the trials, the people also saw their necessity.

Dodd makes the comparison with the Bush admin. crimes.  We need the Senate investigations and then prosecutions says Dodd.  They might not be popular at first, but they are necessary.  Way to stand for principle, Senator. Your father would be proud.

Replacing Souter: Criteria for a Supreme Court Justice

The Constitution of the United States does not give any binding criteria of eligibility for Justices of the Supreme Court.  This contrasts strongly with the President and members of Congress in which age and citizenship requirements are spelled out (the President and VP may not be naturalized citizens).  Theoretically, anyone could be appointed to the Supreme Court–provided the Senate approves for the Constitution requires the “advice and consent” of the Senate. Usually, this has meant a simple majority unless an attempt at filibuster means that 60 senators must agree to “invoke cloture” and end debate and go to a vote.

In practice, however, Justices have always been appointed who were familiar with the law of the land.  They were expected to be lawyers who had passed the bar exam and were licensed to practice law in one or more of the respective states of the union.  After law schools became common (19th C.), all Justices were expected to have law degrees.  Sitting judges from lower courts, especially appellate courts, have formed the bulk of the Justices.  (All of the current members of the Supreme Court were appellate judges, for instance, though both Souter and Clarence Thomas had only served briefly before being nominated to the Supreme Court of the United States [SCOTUS].) But that has not always been the case.  Beginning with the first Chief Justice, John Jay (1745-1829), there have been numerous justices who spent part of their careers as working politicians.  (Jay had been President under the Articles of Confederation, prior  to the adoption of the current Constitution, as well as minister (ambassador) to France and Spain and later Secretary of Foreign Affairs (i.e., Secretary of State).  A signer of the Constitution, he was also a co-author of The Federalist Papers.   Later he was Governor of New York.) In the 20th C., such working politicians who became Supreme Court justices included William Howard Taft (previously U.S. President), Charles Evans Hughes (former governor of NY and Republican candidate for U.S. president), Earl Warren (former governor of California), and Hugo L. Black (Democratic Senator from Alabama).  There have also been numerous legal scholars at law schools and high-ranking members of the Department of Justice–especially Attorneys General and Solicitors General.  (The great Thurgood Marshall, first African-American justice, had been Pres. Lyndon Baines Johnson’s Solicitor General. The Solicitor General pleads the government’s cases before the SCOTUS.)

So, Pres. Obama has a wide array of choices before him.  The Senate favors confirming appellate judges, but Obama has said he is looking for someone with real world experience, not just academic brilliance.  So, he might incline to reviving the tradition of appointing a working politician, or someone working as legal counsel for a human rights organization or for labor or for children.  We also know he favors brilliance and he favors legal appointments whose legal degrees come from the Ivy League schools (Harvard, Yale, Columbia, Princeton, ) or sometimes Chicago or Stanford.  In my view, this is a welcome change from the Bush administration’s habit of appointing legal people with degrees from fundamentalist diploma mills like Pat Robertson’s Regent University, but that Obama should work to diversify.  There are plenty of excellent legal minds which went to good law schools attached to state universities (e.g., University of Michigan) and from a much broader range of the country.  The Ivy League is excellent, but is not everything.

If I were a gambler (which I am not), I would wager a large sum that his appointment will be a woman.  We only have one woman on the Supreme Court and this is far inferior to other nations.  Further, we know from studying appellate courts that the presence of more than one female judge influences the judgments of the male judges.  Since women are 51% of this country, this imbalance is long overdue correcting. And women are nearly 60% of the Democratic Party,  so Obama will feel major pressure to appoint a woman–to say nothing of the fact that Michelle Obama, his wife, is also a Harvard-trained lawyer. 

There will also be pressure from African-Americans to appoint another African-American and from Hispanics to appoint the first Hispanic justice. (Asians and Native Americans are too small a fraction of the population to put real pressure on Obama in this way, but they will doubtless lobby for a member of one of their ethnic groups, too.)  Yet, Obama has never been the “quota” type of Affirmative-Action believer.  He has a diverse cabinet, but looked to qualifications first and foremost. (Those on the right who predicted he would fill his cabinet with African-Americans have been shown wrong. If anything, they are slightly under-represented.)

I would love to see greater diversity on the court, but my priorities are excellence, defense of civil liberties, and a tilt toward seeing the law on the side of the poor, marginalized, and weak, rather than on the side of corporations.

If I were advising the president (yeah, right), I would want someone who:

• Believes strongly in religious liberty and church-state separation.  Membership in Americans United for Separation of Church and State or a similar group would be a huge plus.  If the nominee is a judge, I would look for opinions that represent the previous high separation standards, prior to the erosion of the wall late in the BurgerCourt and all through the Rhenquist Court and continuing so far in the Roberts Court. 
• Believes strongly in civil liberties more broadly, especially free speech, assembly, privacy, the press.  I would want a justice that defends the civil liberties of suspects,  too, and keeps high standards for police and government agencies in the collection of evidence.
• Is suspicious of the very idea of corporations as persons (Santa Clara County v. Southern Pacific Railroad, 1886) and generally favors the rights of individuals over corporations and the common good, including the ecological common good, over corporations.
• Believes in equal justice for all regardless of race, religion, ethnicity, sex, gender identity, sexual orientation, or physical or mental disability.
• Believes strongly in the separation of powers and checks and balances and rejects the “unitary executive” idea of Yoo and co. which makes the president an elected dictator, at least in time of war.  Strongly reserves the right to declare war to Congress as Article 1 prescribes.
• Is more inclined to see democracy threatened by state secrets than by too much information in the hands of the people.
• I would love a true opponent of the death penalty, no hedging, on SCOTUS, since we have not had one since Marshall’s retirement. (We never had a majority of those believing the death penalty was wrong.)  However, if this was well known, I am not sure such a person could get confirmed by the Senate.  Fortunately, abortion comes up at senate hearings far more often than the death penalty.
• I would love someone who believes  that Article 1 of the Constitution means what it says–that ratified treaties share with the Constitution the status of “highest law of the land.”  Thus, no executive can decide that the “Geneva Conventions are outmoded and quaint”  as some of the Bush administration did.

Would such a nominee be able to be confirmed?  Hard to say. Much would depend on the person’s ability to articulately defend her or his views before the Senate.  It’s not the Republicans so much that Obama’s nominee would need to watch (now that they have only 40 seats in the Senate!), but the centrist and conservative Democratic senators who meet with Evan Bayh of Indiana.  If Obama’s nominee seems to them to be too far from mainstream legal opinion, s/he would be in trouble.  So, for instance, I think we could get a strong torture opponent, but not someone who was as outspoken against torture during the Bush years as Dawn Johsen, Obama’s yet-to-be-confirmed nominee for Deputy Attorney General for the Office of Legal Counsel.  Obama wouldn’t want to see such a long hold up. 

What criteria would you suggest for such a nominee?

An Appreciation of Justice David Hackett Souter

On Friday, Associate Justice David Hackett Souter, 69, announced that he is retiring at the end of this term of the Supreme Court of the United States (SCOTUS–as the legal shorthand goes). That’s at the end of June.  Pres. Obama announced that he will seek to have a nominee for Justice Souter’s replacement soon so that the senate confirmation hearings can proceed and the replacement can be sworn in before the Court’s new session which begins on the 1st Monday in October (by law). 

This has led political and legal nerds (including yours truly) to play a new game:  Search federal judges, legal scholars,  politicians with law degrees, etc. for Obama’s likely list of potential nominees and weigh their chances of getting through the confirmation process.  The game has serious implications. Supreme Court justices are appointed for life and their legal judgments affect the law and politics of the land for decades after the president who appoints them is long gone.  E.g., the oldest member of the Supreme Court is Associate Justice John Paul Stevens, 89, who was appointed by the late Pres. Gerald Ford in 1975.  But my speculations will await another time.  I want to take a moment to express appreciation for the departing Justice Souter.

I didn’t expect to like Souter when he was appointed by Pres. George H.W. Bush (Bush I) in 1990.  I knew that Bush desired to appoint a very conservative justice to fill the vacancy left by William J. Brennan, a hero to liberals  and progressives like myself.  I remembered how we had barely escaped being saddled by Reagan with the far-right wackjob in Robert Bork.

[Note 1: That’s one vote I’ll always be grateful to Arlen Specter for.  He led the GOP moderates against the extremist Bork.  Note 2: The Religious Right interprets any criticism of Bork as due to his pro-life views. WRONG. I was thoroughly pro-life when he was nominated and still find his opinions on that issue to be among his most legally challenging. I still thought Bork was a wackjob. He thought Brown v. Board of Education (the unanimous 1954 decision which outlawed segregation) was wrongly decided! He believed Gideon v. Wainwright which demands a right to counsel for those who cannot afford lawyers to be wrongly decided! He thought Miranda v. Arizona which demands that the police read suspects their rights to remain silent, to have an attorney present before questioning, and to be warned that any statement they give can be used against them at trial to be wrongly decided, too! Bork would have been a dangerous addition to the Court.  Of course, after Bork was blocked, Reagan pushed through Scalia, whose extremism isn’t much different–except on free speech where Scalia has surprised liberals and enfuriated conservatives by consistently striking down restrictions on free speech, including a Texas law against flag burning.]   I suspected Souter to be another Bork without a sufficient paper trail to be caught.

I have been pleasantly surprised. He is no liberal–no matter what Republicans say whose battle cry has become “No more Souters!”  But he is a very thoughtful justice with an independent mind–exactly the kind of qualifications one needs in a Supreme Court justice.  He began as a swing vote on the Court, a moderate conservative who relies heavily on precedent and does not like to see courts make radical changes in settled law.  But as the SCOTUS grew ever more conservative, Souter sided more and more with the moderate dissenters. (After the departures of Brennan, Marshall, and Blackmun, there have been no real liberals on SCOTUS–the closest being Ruth Bader Ginsburg, who would have been considered a moderate in earlier decades.)

Here is a brief sketch:  Born in 1939 in Melrose, MA, he spent his childhood and adolescence in rural  New Hampshire. He fell in love with the New Hampshire farmlands and hills and still loves to climb and hike in that area to this day.  This respect for rural America has led to the one consistently liberal area of his jurisprudence: Souter’s strong commitment to environmentalism against the depradations of corporations.   This rural background also led Souter to a love of simple living that stays with him: He does not own a television or cell phone and does not use email. He writes out all his legal briefs in longhand using a fountain pen.  He has no answering machine or personal computer.  He lives a spartan existence in a small apartment.  He loves reading, plays and opera, and jogging, and avoids the Washington, D.C. nightlife like it is a plague.  He returns every year when the court is not in session to NH (by car, not using air travel except when absolutely necessary–and for this reason turning down many opportunities to lecture in Europe) to hike in the NH woods and mountains.  Although once engaged, he has never married, leading him to once be listed as among D.C.’s “most eligible bachelors.” (At 69, that is probably no longer the case!)

Some have used his persistant singleness to argue for Souter being closeted gay, and that’s possible, but there is no real evidence of this. Also, I bristle at the suggestion that all people who aren’t either married or obviously sexually active (even promiscuous) must be gay.  We used to understand that some people had low sex drives and, for whatever reasons, preferred single life.  David Souter seems to be among them. I think it has to do with his love of simplicity. Whatever the joys of married life and parenthood (they are many), they do not include “simplicity.” Marriage and children mean that one’s life is inevitably COMPLICATED–for better or worse. 🙂 Souter’s semi-monastic life has its attractions–even for those of us who have chosen another path.

His low-tech existence also has its attractions. I have succumbed to the personal computer and to blogging and email, but I often check my email only once a week and find the amount of it discouraging. I try to be selective in bowing to the high-tech age: I don’t own a cell phone and didn’t own a pager when they were the rage, either. I won’t go on My Space, Facebook, or Twitter because I believe I’d never get any real writing done. I have cable TV, but try to rotate: 1 month of watching followed by a month of not watching. My addiction to news, however, means that during my off months from TV, I am glued to National Public Radio and the BBC!  I love the way the internet really is an information highway–and hate its filth, commercialism, and meanspiritedness.  Souter’s decisions resonate with me even where I have not made the same ones.  Note: Souter’s low-tech lifestyle means that while he is a “nerd,” he is not a “geek.” I appreciate the difference since my techno-geek wife has to help me with all electronic equipment.  🙂

Souter earned a B.A. in philosophy at Harvard (magna cum laude, Phi Beta Kappa) with a thesis on the judicial activist philosophy of Oliver Wendell Holmes. (In confirmation hearings, Souter said that he rejected Holmes’ judicial activism, but envied his ability to  write and many of his substantive positions. This was a clue that neither liberals nor conservatives picked up on in 1990.)   Selected as a Rhodes Scholar, Souter earned an M.A. in political science from Magdalen College, Oxford University, in 1963.  He earned his law degree from Harvard University Law School in 1966.  He is a cradle Episcopalian and a lifelong Republican in the old-style New England version of Republicanism: fiscally and legally conservative but not radically right; libertarian in social views (i.e., if it doesn’t hurt the common good, allow it even if one finds it personally distasteful); cautious about state power, but also about corporate power; arguing for a strong military defense force, but VERY cognizant of the limits of military power and generally opposed to military adventurism.  It is a style of Republicanism that is now fading fast.

Souter worked in private practice for only two years, not liking that aspect of the law.  He became Asst. Attorney General of New Hampshire in 1968, beginning a long career in public service.  He was a strict law and order person as a prosecutor and that part of his judicial philosophy remains.  The Attorney General of NH in those days was Warren Rudman and Souter and Rudman became fast friends–and therein lies the tale of Souter’s later career.  Rudman made him Deputy AG in 1971.  When Rudman left to return to private practice in 1976, Souter succeeded him as AG of NH where he was known as a tough prosecutor. 

Again because of Rudman’s influence, Souter was named Associate Justice of the Superior Court of NH in 1978.  As a judge, he was known to sketch jurists and witnesses. He was known for treating everyone in court, including defendents, with great respect.  He was also known for tough sentencing.  From there, Souter was named Associate Justice  of the NH Supreme Court in 1983, and Associate Judge of the U.S. Court of Appeals of the First Circuit in 1990.

At this time, Rudman had become a Republican Senator from NH and former NH Gov. John Sununu (who had passed Souter over for Chief Justice of NH’s Supreme Court) had become White House Chief of Staff to Pres. George H. W. Bush (Bush I).  They were both instrumental in Bush’s nomination of Souter for the SCOTUS position vacated by the retirement of the liberal champion, William J. Brennan (STILL one of my heroes).  At that time, few outside NH knew who Souter was, although he had been on Reagan’s short list for the SCOTUS seat that eventually went to Justice Anthony Kennedy (the swing vote these days).  Bush I wanted to name Clarence Thomas to Brennan’s seat (as he eventually was to the seat of the other great liberal dissenter, Thurgood Marshall).  Rudman and Sununu convinced Bush I that Thomas did not have enough judicial experience and he nominated Souter, instead. 

The rest is history.  Liberal groups marshalled against Souter, convinced he would be another Bork or Scalia–and his confirmation was far from unanimous.  Conservatives had never heard of Souter, but the liberal opposition reassured them that they were getting a reliably conservative voice on SCOTUS. Both  groups were wrong.  Souter’s first two years on the bench were reliably conservative, but as the Court moved right, he moved center and then slightly left of (the new) center.  Conservatives were furious when Souter provided the vote to prevent overturning Roe v. Wade (the 1973 decision which struck down most laws against abortion) in Planned Parenthood v. Casey in 1992 (although Casey did allow more restrictions that Roe).  Civil libertarians like myself were pleasantly surprised when Souter ruled with the majority in another 1992 case, Lee v. Wiseman against a school-sponsored public prayer.

Souter’s departure while relatively young (by the standards of a court of lifetime appointees who often die in office!) and in good health is unusual.  But it should not be surprising. Since his appointment in 1990, he has let it be known that he does not like Washington, D.C.  He leaves immediately at the end of every Court year back  to NH and returns only a few days before the new session. As mentioned above, he does not participate in the Washington night life.  He has called his position, “the world’s best job  in the world’s worst city.”  I find it refreshing that he is not addicted to power and prestige and wants to retire in time to enjoy the NH hills and woods some more and to visit old friends and family.  There is many a career politician in both major parties who could take a lesson here.

But I think it likely that Souter’s departure also has to do with Bush v. Gore, the 2000 case which stopped the recount in FL and declared Gov. George W. Bush winner of the presidential election.  Souter sided with the 4 against the decision.  It wasn’t losing that disturbed him:  Every justice expects to lose as well as win controversial court cases.  What disturbed him was the blatant partisanship.  Souter believed that judges are to be above party loyalties–as they are.  Watching colleagues go against previously articulated judicial philosophies (especially the conservative allegiance to federalism–the belief that state decisions should be decided by states wherever possible) because those policies would likely work against the person they WANTED to win, greatly disturbed Souter.  He was especially distraught over the way Justice Sandra Day O’Conner, with whom he was very close, voted with the Renquist-Scalia majority.  So distraught was Souter that friends had to convince him not to resign SCOTUS in protest. 

[Note: When Bush v. Gore was decided, I thought my opposition might be simply be because I couldn’t stand Bush.  I wanted to see if the decision was really as bad as I believed. So, I began reading the legal reaction of conservative legal scholars from Yale’s Stephen Carter, to Duke’s H. Jefferson Powell, and others.  I was not wrong.  The vast majority of legal scholars were horrified by Bush v. Gore and conservative scholars considered it the biggest example of judicial activism (a bad word for conservatives) since Roe v. Wade (their previous benchmark).  So widespread was this reaction that the American Bar Association came very close in 2001 to doing something unprecedented in its history:  issuing a public denunciation of the decision!  Since the ABA is hardly dominated by liberals, this was an indication of how radical a departure from settled law, Bush v. Gore was and how worried most legal scholars are that it will set a precedent–even though the 5 justices in the majority tried to restrict the ruling to that case.  Former MN Sen. Norm Coleman’s lawyers, in his legal contest of Al Franken’s narrow victory, are hoping to appeal to Bush v. Gore before SCOTUS before its all over.  Two of the 5 justices who voted for that decision, O’Conner and Renquist are no longer on the bench. Renquist died and O’Conner retired. But their replacements, Alito and Roberts, are just as conservative if not more so. So, would they suddenly decide that Bush v. Gore IS legal precedent, no matter what the court said in ’00?? My guess, is that SCOTUS will refuse to hear the case. The Constitution clearly says that the Senate is the last word on its own membership. Of course, SCOTUS was the one organ of government that had no constitutional role in presidential elections, too. If the recount could not decide a clear winner, the presidential  election of 2000 should have been thrown to the House of Representatives, per Art. 2.  Since Republicans had the majority of  the House in ’00, B ush would likely still have been declared the winner, but at least the process would have been constitutional!]

I, for one, am glad Souter didn’t resign.  I think of several important cases during the Bush years (especially torture and detention and war powers cases like Hamdan v. Rumsfeld) that might have been decided differently without Souter.  I am among those who  believe that we came very close to losing our democracy altogether during the Bush years.  Without David Souter on the Supreme Court (as well as many other factors), we might well have lost it.

Thank–you, Justice Souter, for putting the law above party. For putting loyalty to law and to country ahead of your own personal desires.  Thank-you for waiting, years after it was no longer pleasant for you to work on SCOTUS.  Thank-you for the thoughtfulness you put into each opinion and dissent–even when I disagree with your conclusions.  Thank-you for your service.  All Americans, indeed the world, owes you thanks for keeping the nation from becoming a dictatorship.  You retired not when you wanted to retire, but when it was safe–when your successor was unlikely to be part of the Scalia/Thomas/Alito/Roberts and sometimes Kennedy cabal that has so distorted American jurisprudence.

Here’s praying that your replacement, no matter her or his general legal philosophy, shows your commitment to the rule of law, your refusal to put party first, and your independence of mind. If she or he showed your love for nature, that might also be a good thing, considering the many ecological questions that are likely to face the SCOTUS.