Souter’s legacy: a jurisprudence of politics



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Byron “Whizzer” White was appointed to the Supreme Court by President Kennedy in 1962. By current standards, he would be considered a far-right conservative. He dissented in both Miranda and Roe, calling the latter “an exercise in raw judicial power,” while he authored the majority opinion in Bowers v. Hardwick, which upheld a Georgia anti-sodomy law.  White resigned from the Supreme Court in 1993, the first year of Bill Clinton’s presidency. White could have allowed a Republican president to name his successor by resigning during George H.W. Bush’s presidency or holding out until George W. Bush’s presidency, which would have maintained the court’s ideological balance. Instead, he followed the tradition of allowing a president of the political party that appointed him to replace him. His successor? Uber-liberal Ruth Bader Ginsburg, which has tipped the court to the left. David Souter, in contrast, timed his resignation to prevent a president of the political party that appointed him from replacing him, resigning within months of Democrat Barack Obama becoming president. This really should come as no surprise, because the jurisprudence of David Souter has been a jurisprudence of politics. When it came to abortion, stare decisis was all important, but when it came to whether there is a constitutional right to homosexual sex, stare decisis mattered not one bit. Unlike Antonin Scalia and Clarence Thomas, who reach liberal as well as conservative results - for example, upholding flag burning and against limits on punitive damages - Souter invariably came out in favor of the liberal result. For example, against gun rights, property rights, the death penalty. For terrorist rights, race-based school admission policies, the regulation of political speech. Anyone who thinks that President Obama is going to nominate a moderate to replace Souter, in deference to his ambitious legislative agenda, is kidding himself. Obama is as megalomaniacal about fundamentally changing America as Ahab was about getting Moby Dick. The “fierce urgency of now” is not just a campaign slogan. Obama understands that he has a small window of opportunity to effect the dramatic changes he seeks.  A man who has the ambition and audacity to attempt to simultaneously federalize health care, higher education and energy is not going to blink at adding the confirmation of a far-left judicial activist to his to-do list. No, Obama is going to swing for the fences with Souter’s replacement. My guess is that Obama will nominate his friend Massachusetts Governor Deval Patrick, whose ratings have sunk like a stone. He can bail out a buddy, while moving the Supreme Court even further to the left. Does it get any better than that? Senate Republicans should attempt to filibuster, not because they will succeed in blocking whomever Obama nominates — they won’t — but because it will give Republicans a chance to seize the bully pulpit from Obama, albeit if only for a short while. They should make the case that Obama’s far-left Supreme Court nominee is just one part of the Obama agenda to make America a far-left country.

Ed Mosca is an attorney in private practice in Manchester.


 

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