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The explicit terms of the Constitution, in other words, can create a conflict of approved values, and the explicit terms of the Constitution do not resolve that conflict when it arises. The guarantee of the right to publish is unconditional in its terms, and in its terms the power of the government to govern is plenary.
David H. Souter, the perennially reticent, famously dorky former justice of the United States Supreme Court, gave his country a blessing of a speech last Thursday at Harvard University's commencement. In his typical polite, patient, plodding style, he offered to the (probably bored and underappreciative) crowd an extraordinary gift. He delivered to them a thoughtful but firm answer both to the lazy politicians who decry "judicial activism" and to "originalists," like Justices Clarence Thomas and Antonin Scalia, who see the Constitution as a contract that must be interpreted only in light of what its original drafters wrote and are known to have meant at the time.
Criticizing what he called the "fair reading model" of constitutional interpretation, Justice Souter's extraordinarily candid and accessible remarks will be part of law school discussions and debates for years to come. It's too early to tell if we've just witnessed the re-incantation of Oliver Wendell Holmes' "Common Law" (circa 1881. "The life of the law has not been logic; it has been experience") or Benjamin Cardozo's "Nature of the Judicial Process" (circa 1921. "There, before us, is the brew." But, despite silly, inaccurate headlines like this one, (Souter did not defend "judicial activism") it wouldn't surprise me if this speech turns into a book and the book into a vital part of our ageless constitutional conversation.
As for the paucity of media coverage on it:
That's a crying shame; because this debate over what our Constitution is and is not truly is worthy of the nation's attention and respect. Thanks to Justice Souter, soft-spoken as ever, it's just been given worthy new breath. And, knowing Justice Scalia, there is quite likely quite soon to be a quite loud retort.
UPDATE: Unfortunately, the charge is being led by one of my daily reads, Andrew Sullivan. Why does it not occur to some that the spectrum of personal investment in sexuality is as broad as the spectrum of sexual orientation itself? Is it so hard to fathom that certain people, perhaps from a surfeit of mental profundity, are disinclined toward physical relationships? Some folks would swim every day if they could; others detest the water. Life is big and large and full of all kinds of fascinating people.
As if it weren't right-wing enough, the UL also syndicates some national wingers as well, such as Jonah Goldberg:
Obama opposed both of President Bush's Supreme Court appointees, John Roberts and Samuel Alito, presumably because they lacked what he called the "quality of empathy, of understanding and identifying with people's hopes and struggles." And in his run for the presidency, Obama said in 2007, "We need somebody who's got the heart -- the empathy -- to recognize what it's like to be a young teenage 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'll be selecting my judges."
...According to Obama -- a former law instructor -- in 95 percent of the cases, precedent and the law are clear enough for judges to go with the rules, but in the last 5 percent, judges have got to have a heart that bleeds for certain kinds of people.
It's funny how twenty years ago no one blinked an eye when a conservative judge, nominated by a Republican president, described in detail his ability to empathize with certain kinds of people.
Only the hearts of some are allowed to bleed, apparently. Or something.
Of course, Justice Souter is perhaps a poor example to bring up to contrast with 21st century GOP thinking, given that he is a classic conservative jurist.
Solicitor General Elena Kagan, the woman who tops President Obama's short list for the Supreme Court, is the subject of a baffling whisper campaign among both gay rights activists and social conservatives: those whispering assume she's gay, and they want her -- or someone -- the media! -- to acknowledge it.
...Human beings tend to conflate sexual orientation and diversity within gender. A woman who has short hair, favors pant suits, hasn't married, and doesn't seem to be in a relationship must be a lesbian. (It is ironic and disheartening that the first female solicitor general ever isn't enough of a woman for some people.) Former Attorney General Janet Reno and current Homeland Security Secretary Janet Napolitano are victims of this confusion.
This all seems so familiar:
Like other aspects of his life, the unmarried Souter's social activities resemble those of an 18th century gentleman, when an unmarried relative was often the backbone of the community, with the leisure to do what those with children did not have time for. Like Henry Higgins, Souter may be happiest spending "his evenings in the silence of his room; ((in)) an atmosphere as restful as an undiscovered tomb."
But Souter had barely left the podium in the press room of the White House before Republican Party officials were raising "the 50-year-old bachelor thing," which was widely interpreted as a way of introducing speculation that Souter is homosexual.
Just by way of an example of how stoopid the Village can get over SCOTUS nominees, it's also worth remembering why the objection to Souter's bachelor bookishness:
The more serious question about Souter's ascetic ways is whether a man who seems to prefer books to people can empathize with and understand the problems of ordinary people.
So Souter was too bookish to have sufficient empathy, but Sotomayor was too Latina to have insufficient empathy. And Kagan is either not gay enough, or too gay.
Adding: Of course, the degree to which an individual tends toward engagement in his or her sexuality is as broad a spectrum as an individual's tendency in sexual orientation, but that's hardly a conversation suited to the intelligence level of the current CNN pundit set.
John H. Sununu is so busy legacy hunting, he doesn't mind if it means impugning the character of a Supreme Court Justice, himself perhaps the least impugnable public figure of our time:
Sununu prefaced the story [of his role in souter's appointment] by recounting the scene at a party he held for three new judges he had appointed to the superior court when he was governor in the 1980s. Sununu addresses the crowd about "what it takes to be a judge in New Hampshire: good character, intelligent and all these wonderful little platitudes. And I look over and all three of them are about that high or shorter," he said, bringing his had up to his eyebrow. "So I say, in New Hampshire you can't be any taller than the governor. And everybody laughs, ha-ha-ha-ha, and I go back to my office."
After the party, Sununu said, staffers asked him if he'd noticed what had happened after that joke. He said he had, everybody laughs. "They say 'No! Every lawyer in the room went [bends his knees],' " Sununu said.
"That anecdote is a very, very significant lesson on the perils of appointing judges. Because all their life they effectively walk around crouched to suit the formula that will achieve their ambition," Sununu said. "So David Souter had very conservative decisions as a (New Hampshire) Supreme Court judge. In his interviews, he knew that George Bush was looking for a conservative judge, and gave everybody that impression. It came down to David Souter versus Edith Jones. I frankly supported Edith Jones, because I thought the president would get great credit for supporting a second woman to the court."
Here's an account from Time in 1990:
Nor had many on the G.O.P.'s right wing. They would have preferred an outspoken champion of their cause, like Federal Appeals Court Judge Edith Jones of Texas, a law-and-order advocate who was the President's second choice. But they take comfort from the fact that Bush's pick has the strong backing of White House chief of staff John Sununu, a former Governor of New Hampshire who appointed Souter to the state supreme court in 1983. Says one senior Republican: "There's been a lot of wink-wink, nod-nod among conservatives who think Souter is Sununu's guy and therefore can be trusted."
...After Souter was contacted at his office in Concord, he made three calls in quick succession to Rudman. The first was to tell Rudman the news. Then Souter quickly phoned again, inquiring whether it was possible to fly to Washington directly from Manchester, N.H. ("This is not a guy who travels a lot," says Rudman.) Souter called a third time to add that at the White House he would not discuss how he might rule in future cases. "They ought to know that beforehand," Souter insisted. "It might save all of us a lot of time."
Look, if right-wingers want to lament Souter's record, go for it. (He's a judicial, not a political conservative, but I don't expect them to get that difference in meaning anyway.)
But to imply that he somehow hid his liberal leanings in order to become a Supreme Court Justice under a Republican president is an insult of the highest order when directed at someone like David Souter, who has spent his entire career, from what I have read of him, guided by keeping politics out of the courtroom.
It's also especially galling that a man who threatened to make New Hampshire known to America as the home of abusers of taxpayer money is trying to burnish the historical record in his favor at the expense of another man who may very well go down in American history as the most shining example of the traditional, thoughtful, frugal character of our state.
Since the GOPers have trotted out the empathy nonsense again for the comfirmation hearings for Souter's replacement, I thought I would highlight today two earlier posts about Souter's own declaration of judicial empathy, once during his own confirmation hearing, and another as a biographical anecdote from a friend. Both concern Roe v. Wade.
Just when I thought I was getting over my mini-obsession, the Christian Science Monitor tells the story of letters exchanged between him and his SCOTUS-mates on this, David Souter's last day on the job. Chief Justice Roberts writes a letter from the gang, in which:
"We deeply value the times we have shared in judicial service," it says in part. "We understand your desire to trade white marble for White Mountains, and return to your land 'of easy wind and downy flake.'"
To which, Justice Souter:
"Your generous letter has touched me more than I can say, and I will only try to leave you with some sense of what our common service has meant to me," he writes.
"You quoted the Poet, and I will, too, in words that set out the ideal of the life engaged, "...where love and need are one..."
The Poet! We'll not see the likes of such a public servant as Souter again, I think.
Also, the NYT notes something of interest:
When Justice David Souter retires from the Supreme Court today, environmental interests will lose one of their most dependable votes.
"Over his tenure on the court, he evolved from a justice with a pro-business philosophy to a solid vote for the environment on the court in his later years," said Richard Frank, executive director of the Center for Law, Energy & the Environment at the University of California, Berkeley's law school.
And why shouldn't someone raised on Frost and in the state Frost inhabited not favor the environment?
Update: CBS has made Souter's elegant farewell letter available as a .pdf at this link. It should be preserved as a model of how to say much by saying little.
His Latin teacher Lillian Grossman recalls an exceptional student. At one point while David was in her class, a friend getting a doctorate at a London university asked her to translate a treatise in Latin about London sewers. Grossman assigned the task to Souter and Ruth Ferreira (who now goes by her married name, Houghton), another outstanding student. "My God, you should have seen the job he did! It was as if it were beginning Latin. It was unbelievable!" Souter, Grossman remembers, was "exremely smart. Very quiet, very reflective. He would think before he spoke."
That, and of course, what the NYT refers to as "only slightly more seductive than a mud hut," to me is something close to paradise.
Oh, and as a New Hampshire teacher, this news made my week:
Souter announced that he had agreed to serve on New Hampshire's curriculum committee on civics education, his small way of helping turn back a rising tide of ignorance that, he warned, threatens America's democratic institutions.
"At a time when we need some private capital to provide economic stimulation, this is the answer," the Manchester Democrat [D'Allesandro] told his colleagues just after midnight yesterday after they voted 4-3 to support his plan to permit as many as 13,000 slot machines at the state's three horse and dog tracks - in Salem, Seabrook and Belmont - and in two yet-to-be-determined North Country locations.
House:
"The House position has been, over many years, consistently in opposition to gambling," said Rep. Marjorie Smith, a Durham Democrat and House Finance Committee leader. She will chair the House-Senate conference committee charged with negotiating a final version of the budget later this month.
Moreover, Smith said, she sees specific problems with D'Allesandro's plan: "The figures are not realistic. The language which is in the bill provides no oversight."
Souter & Meldrim:
When Rudman resigned from office a few years later, New Hampshire's Governor Meldrin Thompson appointed Souter to the top job. As attorney general for New Hampshire, Souter fought a gambling legalization movement in the state as well as protests against a nuclear power plant.
and more Souter and Meldrim:
Notoriously conservative, Thomson's at-times flailing ideological aggressiveness serves as a narrative foil to Souter's measured thoughtfulness, and nicely foreshadows Souter's relationship with his Supreme Court colleague, Justice Antonin Scalia. From the outset, Thomson and Souter squared off on state gambling, which Thomson supported and Souter did not, and on how to approach the activation of the Seabrook power plant, for which Thomson pushed hard in the face of Souter's concern that the state lacked an adequate evacuation plan in case of a meltdown.
Ellanor Fink, the Wheaton College student the nominee had dated in law school, characterized him as "tremendously fair-minded." Responding to concerns that Souter had little conception of the "real world" and its problems, Fink expressed confidence that he would "have the empathy" to understand women's issues. "It's not as though he's lived in a cave for the last 25 years. He has many friends and I'm sure many women friends and I'm sure he's very aware of the impact of abortion on women's lives and men's lives as well."
That's from Tinsley Yarbrough's book on Souter.
Of course, we all know the big difference with Sotomayor is that she offends white male conservatives with the final syllable of her last name, and her predilection for Puerto Rican cuisine. So clearly, empathetic or not, she's disqualified herself.
The more I learn about David Souter, the more interested I become:
Justice Souter Confirmation Hearing
"You are asking me at this point, have I demonstrated, can I point to something on the record, that demonstrates a kind of equality of empathy..." - David Souter
I hate it when others say what I wished I had said:
In the twelve years that the George Bushes occupied the White House, I can think of only one outstanding instance when their odd cocktail of nepotism, ineptitude, and lackadaisy went down easy and yielded a savoury, enduring aftertaste. It happened in 1990 when Bush père outsourced his first Supreme Court appointment to his trusty chief of staff John H. Sununu, the self-appointed Smartest Man in the World. Bush clearly had no idea who David Souter was, but what could possibly go wrong? He was cut from the granite of New Hampshire and Sununu said he was cool, so there you go.
Gordon Silverstein, my professor at Dartmouth in the 1990's, recently called Justice Souter 'the only true conservative' on the Court in the New Republic for May 1, 2009. Souter, Silverstein reminds us, has been conservative in his judicial temperament. It's the precedents that he conservatively upheld that happened to be liberal:
You may disagree, but I find this as offensive as the "that garbage" remark:
In 1990, then-White House Chief of Staff John H. Sununu famously promised President George H.W. Bush that Souter would be "a home run" for conservatives, without the kind of baggage that would make for a difficult confirmation fight.
This week, Sununu said that Souter sold himself to presidential advisers as a "very conservative Republican," and had an extensive record supporting that image.
..."Souter was very open and forthcoming at his confirmation hearing," said [former NYT reporter Linda] Greenhouse, now a senior fellow and journalist-in-residence at Yale Law School. "There was nothing stealthy about any aspect of it."
But Sununu, who was disappointed with many of Souter's votes, said that he thinks Souter changed once he joined the court.
"I think people prepare themselves for their ultimate ambition in life over their career, and when that ambition is delivered to them, unwind a little bit and revert back to their fundamental belief," he said.
After many years, John H. finds himself in a position of prominence at the same time, oddly, that the legacy of David Souter is brought to the fore.
Souter's record of judicial independence is a tarnish on Sununu's hard-right politico credentials. So he's lashing out. Kinda sad.
Adding: Sununu can claim he promised a winger all he wants, but as prominent a magazine as Time was clear as a bell back in the day:
Souter called [Rudman] a third time to add that at the White House he would not discuss how he might rule in future cases. "They ought to know that beforehand," Souter insisted. "It might save all of us a lot of time."
After telling another questioner that there's no good hiking south of Massachusetts, he (David Souter) described a dream he's had every day since deciding to retire: He is standing atop New Hampshire's highest peak, above the treeline, looking down a path that winds away into the distance.
That's just a hook: Although he's a Dartmouth alum, Shribman wouldn't know the last New Englander if that Yankee impaled him on a maple syrup tap. He suggests Yaz and San Mateo's Tom Brady (!?!) as quintessential New Englanders. Now, class, if you want to list a Sox player of recent decades in that role, who is it? (Hint: he's from Charlestown or Bellows Falls, they argue about it.)
