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.

William A. Jacobsen and Mike Dorf explain the irony.

[I]ronically, Specter’s defection may give Republicans the ability to filibuster judicial nominees at the Judiciary Committee level, so the nominees never get out of committee.

Huh, you say. Here’s the explanation, from Professor Michael Dorf of Cornell Law School at his excellent blog, Dorf on Law, written two days ago before Souter’s retirement was in play:

Does Arlen Specter’s defection from R to D strengthen the President’s hand in Congress? Perhaps overall but not on judicial appointments because breaking (the equivalent of) a filibuster in the Senate Judiciary Committee requires the consent of at least one member of the minority. Before today, Specter was likely to be that one Republican. Now what?

The link in Dorf’s post is to Congress Matters, which has the Senate Judiciary Committee rule:

IV. BRINGING A MATTER TO A VOTE
The Chairman shall entertain a non-debatable motion to bring a matter before the Committee to a vote. If there is objection to bring the matter to a vote without further debate, a roll call vote of the Committee shall be taken, and debate shall be terminated if the motion to bring the matter to a vote without further debate passes with ten votes in the affirmative, one of which must be cast by the minority.

Now this is interesting. Specter could allow a nominee out of committee if Specter was a member of the Republican minority, but as part of the majority, he’s just another vote. Here are the other Republicans: Orrin Hatch, Chuck Grassley, Jon Kyl, Jeff Sessions, Lindsey Graham, John Cornyn, and Tom Coburn.

The weak link is Lindsey Graham, who was a member of the Gang of 14. If Graham says the course, the Republicans may not be able to stop runaway spending, military retrenchment, and an interrogation witch hunt. But Specter may have handed Republicans a gift.

And how fitting that Joe Biden arranged it all by convincing Specter to switch. Thanks, Joe. I’m sure your boss will appreciate your service as he ponders who he will nominate for the Supreme Court.

The town of Weare, New Hampshire, voting at one of those traditional New England town meetings, rejected a bid to take Justice David Souter’s house by eminent domain. The proposal to seize Souter’s house to build a “Liberty Hotel” had been originated by a California libertarian jokester as a protest against Souter’s vote in the notorious Kelo v. New London decision, upholding a town’s taking of private property for transfer to a developer.

Professor Bainbridge thinks Weare should have taught Souter a lesson.

Ann Althouse endorses the prevailing viewpoint of Souter’s neighbors: He was just doing his job.

Personally, I think that job entails interpreting the Constitution faithfully and correctly, not sophistically bending its provisions to facilitate the empowerment of government at the expense of the rights of the people. Let’s hope that finding himself, even in jest, the potential victim of the involuntary loss of his home made Mr. Justice Souter, at least momentarily, revisit the issue with a keener appreciation of the rights of the individual.

Justice David Souter voted with the Supreme Court majority in the infamous case of Kelo v. New London, which upheld the right of city government to use eminent domain to take away a individual’s property for private development.

On the principle of “what’s sauce for the goose,” Silicon Valley Objectivist Logan Darrow Clements took advantage of the law in Souter’s home state of New Hampshire to file a petition for Mr. Justice Souter’s hometown of Weare to take his property for a development project consisting of the erection of a “Lost Liberty Hotel.”

Voters in Weare will decide the fate of Souter’s colonial house on March 14th.