by John M. Curtis
(310) 204-8700

Copyright May 4, 2009
All Rights Reserved.

               One of the youngest seniors on the U.S. Supreme Court, 69-year-old Justice David Souter, decided to call it quits and return to his home state of New Hampshire.  Conservatives had high hopes in 1989 when then President George H.W. Bush picked Souter for the High Court.  Conservatives should have been leery of Souter’s Harvard senior thesis on celebrated Supreme Court Justice Oliver Wendell Holmes Jr.  When he traveled to Oxford and graduated in 1963 with an M.A. as a Rhodes’ Scholar, conservatives should have known his independence.  His graduation from Harvard Law School should have dashed all hopes of someone expected to follow religious and social conservatives.  Conservatives felt betrayed by Souter, growing more progressive over his 20-year tenure.  Souter’s expected replacement will do little to change the Court’s current ideological complexion.

            President Barack Obama responded to Souter’s retirement, promising a careful pick of someone who could live up to Souter’s fierce independence and brilliant legal mind.  Conservatives like to call progressive jurists “activist judges,” accusing them of “legislating from the bench.”  They have few complaints about conservative jurists opposed to Roe v. Wade, stem cell research and gay marriage, characterizing them a “constructionists” who simply interpret the Constitution.  Souter, a plain white jurist from New Hampshire, championed the rule of law with keen sensitivity to how the Constitution, with its manifold interpretations, affected ordinary people.  Though many High Court watchers expect Barack to pick another woman, the president should steer clear of racial, religious or gender politics.  Picking a replacement in Souter’s mold, Obama may look outside the federal bench.

              Sen. Patrick Leahy (D-Vt.), Chairman of the Senate Judiciary Committee, expects to confirm a moderate candidate.  “I don’t see an ideologues of either the right or the left.  I didn’t think we’re going to have one,” said Leahy on CNN’s “Sate-of-the-Union” with John King.  Former President George W. Bush’s two picks in 2005 of Chief Justice John Roberts to replace the late Chief Justice William Renquist and Associate Justice Samuel Alito to replace Associate Justice Sandra Day O’Connor, both got few votes from Democrats at confirmation.   While both tend to side with conservatives, they’ve still shown healthy judicial autonomy, especially Roberts.  Few on the left complain about Roberts’ temperament as Chief Justice, respecting his balanced approach to writing opinions and managing the High Court.  Renquist fostered a far more combative atmosphere before the High Court.

               Whoever Barack picks, he needs to avoid politics, or, for that matter, make his choice based on race, ethnicity or gender.  Sen. Arlen Specter (D-Penn.), who recently switched to Democrat April 28, suggested that Barack pick another woman, Hispanic or African American.  “We have a very diverse country,” said Specter, urging Obama to find a justice that reflects the country’s diverse makeup.  Stating ethnic or racial preferences runs counter to the time-honored tradition of picking candidates based on merit.  Despite saying he has no litmus test, Obama won’t pick a candidate opposed to Roe v. Wade.  Conservatives on the Senate Judiciary Committee won’t be too happy with pro-choice candidates.  Conservatives know that with all three branches of government controlled by Democrats, it’s very unlikely that Barack would pick anyone without a liberal track record..

               Souter’s replacement will do nothing to change the court’s makeup—at least for now.  With a conservative-leaning Chief Justice John Roberts and solidly conservative justices Antonin Scalia, Clarence Thomas, Samuel Alito and Anthony Kennedy, the right still has the edge on today’s controversial issues.  On the other hand, replacing Souter with a progressively thinking justice would reinforce a liberal bent among the remaining four left-leaning justices.  “If he will appoint a pragmatist, someone who is not an ideologue, that some is no just going to ling all the light bulbs in America on the left, I thin that would be could for the country,” said Sen. Richard Shelby (R-Al.), hoping Barack picks a politically moderate jurist.  If Barack picks a pro-choice woman, that won’t satisfy Shelby or other conservatives.  They’d like to see Souter’s replacement opposed to abortion, gay marriage and stem cells.

            Republicans on the Sentate Judiciary Committee probably won’t get their wishes for a so-called “pragmatic” or moderate that shows respect for “innocent life.”  While picking a competent jurist is the top priority, Barack will be pressured, as urged by newly minted Pennsylvania Democrat Sen. Arlen Specter, to pick a progressive jurist that supports the vast array of “Great Society” programs destined to grow under Barack’s first term.  Souter was supposed to be a moderate Republicans, paralleling the views of former President George H.W. Bush, whose politics were far more “pragmatic” than his right-leaning son.  Barack lucked out with his first pick within the first six months in office.  Over the course of his first term, it’s unlikely, barring some medical mishap, that Barack will get to replace any conservative justices. Whoever Barack picks, conservative won’t spill too many tears over Souter’s retirement.

  About the Author

John M. Curtis writes politically neutral commentary analyzing spin in national and global news.  He's editor of OnlineColumnist.com and author of Dodging The Bullet and Operation Charisma.

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