07 May 2009

He Never Will Be Missed

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David Hackett Souter

R. Emmett Tyrrell
offers a column on the retirement of Justice David H. Souter, observing that while we conservatives are not unhappy to see him go, neither is he particularly admired or respected by the liberals. Such, I suppose, are the inevitable unappetizing fruits of Souter’s arid and sterile Brahmanic legal positivism.

Is it possible that Justice David H. Souter has sensed what I have sensed in reading the liberals’ dutiful adieus to him, their judicial Benedict Arnold? They all are snickering behind their hands. Sure, he pleased them enormously with his 19 years of tergiversations against conservative jurisprudence, after being President George H.W. Bush’s “conservative” Supreme Court nominee. But through all Souter’s years here in Washington, he revealed himself to be a stupendously self-absorbed oddball and not much else. He fell far short of the liberals’ conception of a progressive Supreme Court dissenter, to wit: a charismatic, outspoken, slightly outre intellectual on the model of William O. Douglas.

Souter has been, as The Washington Post puts it, notable for his “quirky independence in spurning the right.” The operative word here is “quirky.” It is not meant as a compliment. Our liberals admire eccentricity but not the eccentricity of a misanthropic loner. Thus, in every supposedly friendly retrospective that I have read of him since he informed the Democratic president that he, a Republican’s Supreme Court nominee, is retiring, the liberals have stressed his weirdness: the misfit, the loner, the guy whose luncheon consists of yogurt and an apple, which he eats “core and all.” That was The New York Times speaking. ….

These are the details that the liberals have been relating as they recapitulate his career as a Republican-turned-progressive. As I say, they are snickering.

They have very little to say about Souter’s work on the court other than that he sided routinely with the liberal minority. I can understand their reticence. After conferring with scholars who follow the court, I can report that they recall not one opinion of his that was memorable for anything other than smugness. As one told me, Justice Stephen Breyer’s dissents have been “thought-provoking,” Justice John Paul Stevens’ “intelligent.” Souter, in his dissents, has been simply a liberal tag-along. There is something about him that is not quite adult. He asks questions persistently, the liberals say with a wink. Well, so does a lost child. ..

Souter’s bland years on the court should remind us how important it is for our leaders to have experience. President Bush and his advisers might have thought it was clever of them to nominate a judge with almost no paper trail. After serving on the New Hampshire Supreme Court for seven years, Souter served just two months on the 1st U.S. Circuit Court of Appeals before his nomination. But for almost two decades, it has been clear that he is out of his depth. The troubling thought is that the president who is about to nominate Souter’s replacement is out of his depth, too.

I began this column with a question. Does the departing justice realize that the liberals, whom he benefited, are snickering? The answer is no. As with much else, he is oblivious.

One Feedback on "He Never Will Be Missed"

Daniel Magoon

You speak derisively of Justice Souter’s dissents. I think you haven’t read his dissent in Seminole Tribe v Florida.


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