Nobody, really, held up David Souter as the Supreme Court Justice they wanted most. Nobody - and I mean no one - ever said "let's find another Souter," though Souter's lack of a paper trail became the guiding model for
potential candidates. Don't say much... and God forbid you say anything interesting.
So now he's going, and people wonder "what next" and I think this might be, for even the most supportive Obama cheerleaders, the final straw in "we simply have too much on our plate." We were prepared for all sorts of legislative fights this year, on health care and budgets and the environment... adding a Supreme Court confirmation to the Senate, well, that's just cruel.
To us, people... not to them.
That Souter was often best seen as unremarkable is not an argument against him being on the Court, at least not to me; we spend too much time, in our "everyone's above average" way in this country setting overly high expectations and wanting stars everywhere to do everything. Souter was a reminder that really, a good legal background and some judicial experience... and you could probably handle being a Supreme Court Justice, too. That's not the worst lesson, when the alternative is a brilliant jurist... like Antonin Scalia.
Then, too, there's the lesson Souter taught us about ideology: appointed by a Republican, many assumed Souter would be "realiably conservative" on the Court, whereupon he morphed into one of the most reliable elements of the "liberal wing." We got Souter because many conservatives fretted, in 1990, that someone visibly conservative could not be confirmed. Over time, and because of Souter, the right abandoned the "stealth strategy" and made their assault more direct: a new world of judicial appointments where idelogy, first and foremost was the criteria, even when the ideological tests made little sense, or a least, no sense as a criteria to be favored over every other.
I don't love the way we put simplistic left/right labels onto the Court - the current Court is something like 7-2 pro-business and corporate interests, and about 6-3 against the rights of defendants and suspects, often - but Souter long ago became the far right's best example of a Bad Appointment That Failed to Perform As Advertised (while Robert Bork remains their best example of Who Should Have Been Confirmed). A good lesson from Souter's confirmation battles, tenure and retirement, I think, would be to look less at ideology and more at skill. I've long maintained I want a good judge, a thinking judge, a reasonable judge... more than I want a hard-nosed partisan of any stripe for whom politics trumps good sense (No More Bush v. Gores!). I know that's not a popular sentiment out here on the bloggy left, where the 25 year run of conservatism wore out even the most judicially fair minded.
By the time Sandra Day O'Connor retired and we were all wishing for more like her - because that was better than the Roberts or Alito we wound up with - you knew things were just off the edge. People didn't want "another O'Connor" because they agreed with her views - or her attempts to find common ground - they wanted her because, ultimately, she turned out to be somewhat less scarily conservative than the others. If anything, I wish we would ratchet back the politicking and the ideological tests. Few people maintain fixed idologies over time (though I'll concede three of them at least are on the Court now - Thomas, Scalia and Roberts, while I'm less convinced about Alito), and we could do well to find good thinkers whose thinking evolves over time and gets us to new and different ideas we don't even know yet.
If there's a Bush-ian/conservative value we ought to really try and eviscerate it is the anti-intellecual, know nothing approach to politics and political appointments. We should try and appreciate that good thinkers, smart thinkers, have opinions and express them; we want that, it's a good thing.
For all the initial hand wringing - never mind the bit chomping eagerness of some lefties to mow down the old opponents - over the upcoming search and confirmation process, I'm actually least worried about Obama in this regard. I trust him to make good, smart, interesting Court picks. I suspect he's even smart enough to introduce what this Court badly needs - someone who believes in compromises, and persuasion, and reaching out to "sworn enemies." Replacing David Souter will work best when it's not about hiding a point of view, nor about believing that a more ideological "liberal wing" will solve all of our problems.
Finding a new Supreme Court Justice, and getting that person confirmed will almost certainly be large scale political theater; but if Obama looks past the politics and ideological purity and seeks excellence, we might just be able to jump start the kind of change I think Obama's best suited to deliver: the one where we try harder to make our government work better and smarter. I don't need remarkable, I don't even require a dyed in the wool lefty... just someone who can be smart and effective. And really... no more David Souters.... Or perhaps... more David Souters.
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