Obama's turn: Justice Souter's retirement sets a new stage

Wednesday, May 06, 2009

Pittsburgh Post-Gazette

For some voters, last year's presidential election was foremost about the future direction of the U.S. Supreme Court. Now that Associate Justice David H. Souter, 69, has told the White House that he is retiring in June, these partisans have the main event they have been anticipating.

Justice Souter's own career suggests a caution. On the face of it, the philosophical underpinnings of the court should not shift. He has come to be identified as part of the liberal bloc, so likely a liberal-leaning justice will replace the same.

But Justice Souter was the choice of Republican President George H.W. Bush and carried the hopes of conservatives when he took the bench in 1990. To say they were disappointed is an understatement. As so often happens, justices are not always what they seem at first or else they change on the bench.

That argues for President Barack Obama to have a good sense of whom he will nominate. At the time, then-U.S. District Judge Souter wasn't well known outside his native New Hampshire and his scant record of opinions didn't leave telling footprints, which was no doubt part of his appeal to the first President Bush with memories of the rancorous Bork hearings still fresh.

The president wasn't the only one deceived by perceptions. The National Organization for Women and the likes of Sen. Ted Kennedy of Massachusetts were among those who misjudged the would-be justice and strongly opposed his nomination. That, too, is a reminder to Americans that at least some of the partisan sound and fury they hear in coming months may signify nothing.

As no self-respecting judge can be expected to answer bluntly and crassly litmus-test questions on issues coming before the court, the best any president can do is to set out a general philosophy he wants in a nominee -- and Mr. Obama has already made a good stab at it.

In one sense, Mr. Obama promised the usual: someone dedicated to the rule of law, someone who honors constitutional traditions and the appropriate limits of the judicial role. But he also said he would seek a nominee "who understands that justice isn't about some abstract legal theory or footnote in a casebook." He said it is about "how our laws affect the daily realities of people's lives."

To conservatives, this will sound like a prescription for the dreaded liberal activist judge of right-wing fever dreams. But liberals certainly have no monopoly on activist judges. Some of the conservative variety have routinely forgotten that they are ultimately paid to render justice, not just dryly parse legal documents.

The Supreme Court has lately seen several notable examples of the right-wing majority taking the law and doing more stretching than could be found in a yoga studio -- and none more so than its absurd Lilly Ledbetter decision. In this, the majority found a way to deny justice to a woman supervisor at a tire plant after she was systemically paid less than male workers.

This finding, too, is a reminder to Mr. Obama that another female and/or minority member of the court may be the best candidate to bring a marriage of legal scholarship and life experience to better understand how the law affects real people.

First published on May 6, 2009 at 12:00 am