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Supreme Court: Spurning Souter

May 4, 2009

Spurning Souter

By INVESTOR’S BUSINESS DAILY | Posted Friday, May 01, 2009 4:20 PM PT

Supreme Court: Retiring Justice David Souter’s high-court career perfectly illustrates the political poisoning of the judicial confirmation process. His successor may very well be an improvement.

Overshadowed as it is in Americans’ memories by the 1991 Clarence Thomas confirmation hearings, President George H.W. Bush’s appointment of David Souter in 1990 is often forgotten. But it spoke volumes about the deterioration of the Supreme Court appointment process.

He was the ultimate “stealth candidate,” chosen out of fear of a repeat of the 1987 Robert Bork defeat. The White House chief of staff, former New Hampshire Gov. John Sununu, was overjoyed with himself when he plucked the little-known and hermitic Souter from his rural Weare, N.H., cabin.

Working in state government pretty much continually since 1968 as a prosecutor and judge, Souter was on the federal bench a mere two months when President Bush accepted the advice of Sununu and Souter’s ex-boss, liberal New Hampshire Republican Sen. Warren Rudman, naming the mystery man to the highest court in the land.

During hearings, the only Judiciary Committee member to sniff out traces of the liberalism that was to mark Souter’s high court career was Sen. Gordon Humphrey, R-N.H., who elicited an admission that as a trustee of a hospital in Concord, Souter has approved its policy of performing abortions.

When the hearings were over, it was the Democrats who felt bamboozled, but two decades of Republican high court nominations should have taught this lesson: Doubt or the lack of a record means the candidate is likely to be a liberal.

Liberals haven’t been dismayed with a Democratic high court appointment since John F. Kennedy picked Byron White, who wrote the dissent in Roe v. Wade.

Republican presidents, by contrast, appoint closet liberals again and again — Nixon gave us Chief Justice Warren Burger and Roe author Harry Blackmun, Ford gave us the court’s current most liberal member, John Paul Stevens, and even Reagan gave us Sandra Day O’Connor and Anthony Kennedy.

In all those cases, what was needed was the guts to embrace and defend a nominee who understands that the Supreme Court’s job is to judge, not act as an unelected superlegislature.

With the Democratic majority in the Senate likely to reach a filibuster-proof 60 votes, Barack Obama can obviously name whoever he wants.

In the summer of 2007, he said “we need somebody who’s got the heart . . . the empathy to recognize what it’s like to be a young, teenaged mom; the empathy to understand what it’s like to be poor or African-American or gay or disabled or old. And that’s the criteria by which I’m going to be selecting my judges.”

That doesn’t mean Oprah will be changing careers. “Empathy” may well mean someone steeped in radical “critical legal studies” thinking, which cynically views law as nothing more than wordplay and disguised politics. And he may choose someone who thinks international law should eclipse our Constitution.

But if the president really believes bipartisanship means “that we’re open to each other’s ideas,” as he recently said, then why not consider someone a bit to the right of current Justices Stevens, Ruth Bader Ginsburg and Stephen Breyer?

A genuinely open, independent mind will find some of the legal wisdom of fellow justices like Antonin Scalia and Clarence Thomas rubbing off on him or her — which would be a marked improvement over David Souter.

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