The announced retirement of Supreme Court Justice David H. Souter made me recall when I met him, back when he was Deputy Attorney General of the State of New Hampshire and I was co-directing a justice system project there to develop criminal justice standards and goals. My colleague based in New Hampshire told me Souter was a natural to be a member of our state panel to review the proposed standards. Everyone in New Hampshire politics or law regarded him as incredibly bright.
They all also thought he was incredibly conservative. And during our meetings, his positions were those of most attorneys-general, tough on criminal law and procedure. It was clear to me that he was a highly intelligent man and that he was principled. Yes, his positions were conservative but so were those of many in the New Hampshire of the late 1970s. Those were the times of Gov. Meldrim (Keep 'Live Free or Die' on the state license plate) Thomson and Wild Bill Loeb's Manchester Union-Leader. The Union-Leader sometimes sent a reporter to cover our public meetings and our only worry was whether the writeup would have anything much in common with what went on at the meeting. Souter was conservative, at least on criminal law, which is what he tended to speak about, since that was what he was concerned with as deputy and later, Attorney-General. I never figured he was just lawyering for his client and that those were not his fundamental beliefs. I respected his principles in that he was there to represent his client, the Attorney-General. He hung out with people like Senator Warren Rudman, a GOP conservative but not a crazy. Little did I think he really did not agree with them on criminal law, or any other area of law, for that matter.
So, yes, I was as surprised as everyone else when Justice Souter turned out to be far more open to arguments coming from the center and left than anyone--including every New Hampshire lawyer I knew--had expected. The current Supreme Court is described as having conservative and liberal blocs, each comprising four justices, with Justice Kennedy as the swing vote. True, except that I've never felt that Stevens, Souter, Ginsburg, and Breyer, JJ., were liberals of the William O. Douglas, Hugo Black (mostly), Frank Murphy, or Wiley Rutledge sort. Only media in the U.S. would act as if they were leftists.
I read last week that all the wild feuding over Supreme Court appointments really began when Lyndon Johnson nominated Abe Fortas, already on the Court, to be Chief Justice. It blew up in LBJ's face, partly because Abe had accepted some funding of speeches from a somewhat shady financier, but mostly because Johnson was a little too cute and submitted the nomination, as well as that of Rep. Homer Thornberry (D-TX) late in his term, giving the GOP a bit of a basis for crying foul. They raised holy hell and then it was the Democrats' turn when Nixon put up the able but reactionary Haynsworth and the totally inept Carswell. Rehnquist managed to slide by to promotion to Chief Justice despite his willingness to lie about his views on race and try to blame the renowned Justice Robert H. Jackson, who had been foolish enough to hire him as a law clerk, as well as lie about his role in challenging black voters in Arizona. The Democrats got it together to knock out the last man standing from the Saturday night massacre, Bob Bork. Arlen Spector, with the unwitting assistance of Joe Biden (both of whom should burn wherever for it), helped give us Clarence Thomas. Roberts and Alito were clearly competent (as was Bork) but had not shot their mouths off so slipped through the confirmation process despite their solid conservatism. Not a pretty picture, mainly because almost all the bad guys got on the bench.
So now Obama, clearly a President perfectly situated to select a fine justice, is pressed to play ethnic group politics. I'd like to see him select a fine liberal justice, since the Republicans always get away with picking solid conservatives and then the media tell the Democrats to pick moderates. No dice. A gay Hispanic woman? Fine, if she has the fortitude and the smarts to take on the not-that-brilliant conservative cadre on the Court. And I guess we need someone who is not too old, since they need to stick around through the various regimes we will inevitably suffer. The new Solicitor General, Elena Kagan, has just finished five years as Dean of Harvard Law. I heard her speak at the school's first public service law conference ever last spring and she put her money where her mouth was--she announced that Harvard would pick up the bill for third-year tuition for students who pledged to go into public service or public interest law for five years. She was the first dean of the ones I have known there who wanted to move the school in the liberal direction. Obama could do a lot worse than pick her.