to focus on his eccentricities — his daily lunch of yogurt and an apple, core and all; the absence of a computer in his personal office — is to miss the essence of a man who in fact is perfectly suited to his job, just not to its trappings. His polite but persistent questioning of lawyers who appear before the court displays his meticulous preparation and his mastery of the case at hand and the cases relevant to it. Far from being out of touch with the modern world, he has simply refused to surrender to it control over aspects of his own life that give him deep contentment: hiking, sailing, time with old friends, reading history.“History provides an antidote to cynicism about the past,” he said at a meeting in March of the American Academy of Arts and Sciences, of which he is a fellow. His participation in a session on the importance of studying the humanities was a rare out-of-court public appearance and therefore attracted news coverage. The take-away quotation from the session was his remark that as each new Supreme Court term began, he prepared himself to undergo “sort of an annual intellectual lobotomy” — a remark that, out of context, seemed baffling and oddly alienated. What he meant was clear from the prepared portion of his talk: that the demands of the term tore him away from the serious reading he sees as essential to the job.Constitutional change, he explained, “comes about because judges evaluate significant facts differently,” or they “discover some relevance to a constitutional rule where earlier judges saw none.” He said that “historians can come to the rescue” by explaining how and why this happens. His ostensible text was the Supreme Court’s journey from the “separate but equal” holding of Plessy v. Ferguson in 1896 to the desegregation ruling in Brown v. Board of Education 58 years later.
The new law Perdue signed on Tuesday makes Georgia just the second state in the nation - behind Arizona - to require prospective voters to provide proof of citizenship. The bill must still receive preclearance from the U.S. Department of Justice under the Voting Rights Act. The new requirement would kick in beginning in 2010 for newly registering voters. Critics called the measure a poll tax. Supporters said it's needed to prevent fraud.
I'm going at this along the lines of how intriguing it is to me that discussions on a local right wing email newsletter that I read spent a far more substantial amount of time talking about race and racism than any of my discussions and activities within the Obama effort or interactions within the african american community this past year and a half. By a long shot.
One of the reasons that the Supreme Court will miss David Souter is that he possesses a gift that we seek but rarely find in a judge – the ability to step outside the bounds of his experience. Nowhere is this more evident than in Justice Souter's astute take on the fraught relationship between race and politics, a topic that has dominated the Supreme Court’s docket for much of his tenure.Souter is perhaps the least politically connected person on the Court, and his home state of New Hampshire is a racially homogenous area that hasn’t had much of a record either way with the Voting Rights Act. Despite his lack of experience, Souter has carved out a position on the Voting Rights Act that is both more nuanced and more pragmatic than his brethren’s. If you want to know what makes Souter a great judge, take a look at his voting-rights opinions.
Because Souter’s voting-rights jurisprudence is tied up with his legacy on the bench, it is depressing that his last term on the Supreme Court may coincide with the last term of the Voting Rights Act as we know it. Based on Wednesday’s oral argument, many now expect the Supreme Court to strike down one of the main provisions of the Voting Rights Act, over what seems likely to be a vigorous Souter dissent. There is nothing simple about voting-rights litigation. Race gets even more complicated when poured into the crucible of partisan politics. On basic questions of race, such as affirmative action, the Court has long divided into two basic camps, with the conservatives flogging the ideal of color blindness while liberals idealistically rely on rights and courts as the solution to inequality.
Neither position translates well to the context of voting. It is odd for the conservatives to demand that the state be color-blind when voters are decidedly not. In a world of racial bloc voting, race-blind districting is simply a recipe for disempowering racial minorities. But the dominant story of race told by the liberals on the Court – one that treats racial minorities as “objects of judicial solicitude, rather than as efficacious political actors in their own right,” in the words of Stanford law professor Pamela Karlan – similarly misses something important. It misses the idea that putting representatives of the minority community into positions of power gives racial minorities the power to protect themselves, so that eventually they no longer need be wards of the Court.
Souter understands both of these things. Consider his take on majority-minority districting, a practice about which the Court has been fighting since before Souter joined the Court. The Court’s conservatives generally see majority-minority districts as handouts, akin to affirmative action and business set-asides. The Court’s liberals generally view majority-minority districts as unfortunate necessities, a race-conscious strategy for integrating legislatures when voters won't.
Souter sees majority-minority districts for what they are – a necessary part of the dynamic by which outsiders find their way to political integration. Majority-minority districts are designed to reduce the salience of race in politics, contrary to the conservative view. But they do so not by producing legislatures that appeal to some aesthetic ideal of diversity but by pulling racial minorities into the political system and giving them a stake in it. In a case on race and redistricting, Souter argued that majority-minority districts were no different from the Polish and Lithuanian wards that once dominated Chicago or the Irish and Italian wards of Boston. In his words, these districts “allowed ethnically identified voters and their preferred candidates to enter the mainstream of American politics,” eventually reducing the salience of ethnic identity as these communities gained political muscle and began to think of themselves as part of the system, not outside of it.
Souter was not naive. He was well aware that pork and patronage played a role here, that there was an ugly side to political integration of this sort. I think his references to cities dominated by machine politics were clear-eyed and deliberate. Even as a man who has quite self-consciously lived his life outside of politics, he understood its dynamism and had an astute sense of how to harness it. Even as a person whose views presumably line up well with the moderate Republican politics of New Hampshire, he grasped the gravitational pull that political power can have on outsiders, the material and dignitary reasons why every group wants to elect a champion of its own, the ways in which being able to identify “my guy” in the legislature furthers rather than undermines the long-term project of integration.
When President George H. W. Bush nominated him to the Supreme Court in 1990, David Souter was an obscure New Hampshire judge with a thin paper trail, hard to figure out, and supporters of civil liberties, civil rights and abortion rights worried that he was being put on the court to do damage to their causes.
Senator Edward M. Kennedy, Democrat of Massachusetts, said Judge Souter had failed to show “abiding commitment” to “core constitutional values.” He and other liberal senators voted against confirmation.
How wrong Senator Kennedy, and almost everyone else, was. Abiding commitment to core constitutional values is precisely what Justice Souter — who has decided to retire — has demonstrated in his 18 years on the court. To the relief of liberals and the dismay of conservatives — who have made “No More Souters!” a judicial-nomination rallying cry — Justice Souter turned out to be nothing like what anyone expected.
The first opinion he wrote overturned, for a unanimous court, the conviction of a black man for killing a white woman, because the defendant had not been given ample opportunity to challenge the makeup of the nearly all-white Georgia jury. Justice Souter went on to become a reliable champion of civil rights. In 2003, he provided a critical fifth vote upholding the University of Michigan’s affirmative action program.
He has also been a firm supporter of the constitutional right to abortion. In 1992, in Planned Parenthood v. Casey, he voted to uphold the court’s embattled ruling in Roe v. Wade.
After Sept. 11, Justice Souter backed the due-process rights of the prisoners being held in Guantánamo Bay. He has voted in favor of gay rights, and carefully tended the line between church and state.
One of Justice Souter’s finest moments came in Bush v. Gore. He did not look at the case through the prism of his Republican politics, or of personal loyalty; one of the parties was, after all, the son of the man who put him on the court. Instead, he rightly insisted — in dissent, of course — that Florida should be allowed to continue counting votes.
Before he decided to step down at the end of this term, Justice Souter often spoke, with evident sincerity, of missing his simpler life in New Hampshire. He may simply have been waiting for a like-minded president whom he would feel comfortable seeing fill his seat.
I thought I was being reasonable, given how Bush exploited race to win the 1988 election (Willie Horton) and clearly sought a closet conservative for the court. You were the attorney general for conservative New Hampshire Governor Meldrim Thomson, who called you "one of the truly great legal conservatives of our time." You told the Senate Judiciary Committee in your resume that you had given no speeches, but you had given a 1976 commencement address as attorney general where you reportedly blasted affirmative action as "affirmative discrimination."
The Washington Post would further report that in that same year, you fought all the way to the Supreme Court against requirements by the Equal Employment Opportunity Commission to provide a racial breakdown of state employees. Even though the regulations were borne out of past and continuing discrimination, you said the breakdown made a "mockery" of the Constitution.
When Strom Thurmond, the late South Carolina senator with a rich segregationist history, said to you in your confirmation hearings, "You're a good man," I figured this meant a very bad tilt for the court. I wrote, "The Supreme Court is lost. It is time that the battle to ensure that the Constitution works for all the people commences in another arena."
I could slide away from this apology by noting how so many other people, on all sides of the political fence, got you wrong, including the conservative Manchester Union Leader newspaper editorial board, which assumed that Souter's record "should not displease those Americans who comprised the majority that made possible the Reagan Revolution."
I am glad I was the one who was far more wrong. Based on the news stories, the top achievement of your 19 years was your refusal to overturn Roe v. Wade's protections for abortion rights. I would add that you deserve tremendous credit for being the right-hand man against right-wing majorities that would have swept away affirmative action. The most important moment on this was in 2003 when you were on the 5-4 majority that upheld the University of Michigan law school's narrowly tailored affirmative action program. That decision was marked both by the realism that student-body diversity "is a compelling state interest that can justify using race" and an optimism by the court that 25 years from now, racial preferences "will no longer be necessary." That optimism got its first reward five years later when the nation elected its first African-American president.
Less highlighted in the news stories, but just as important, was your consistent skepticism about the application of the death penalty, and your voting in 2007 that federal judges should not be forced to use the disparate and discriminatory federal sentencing guidelines between crack cocaine and powder cocaine, as well as other over-the-top drug laws. You were clear in recommending that "the best resolution" would be a new act of Congress to establish new mandatory guidelines provided that juries find "all facts necessary" for the most harsh sentences. That recommendation is closer to becoming reality as the Obama administration last week called for the complete elimination of crack/powder sentencing disparities.
Last week, in the oral hearings over the potential gutting of the Voting Rights Act, you strongly reminded the lawyer for a Texas utility district seeking to be freed from the act that the evidence of lingering discrimination in Texas and around the nation remains too significant to ignore. "Your argument is largely based on the assumption things have significantly changed," you said. ". . .I don't understand with a record like that how you can maintain as a basis for this suit that things have radically changed. They may be better. But to say that they have radically changed . . . seems to me to deny the empirical reality."
Thank you, Justice Souter, for your empirical reality.
Souter recalled his first 3rd Circuit conference in 1991 when then-Chief Judge Dolores K. Sloviter greeted him warmly -- a feeling, he said, that has never waned. But Souter joked that there seemed at first to be "a degree of suspicion" about him because Sloviter gave him a packet of materials that included a copy of the U.S. Constitution. He said he was thankful that Scirica had not done the same this year, but joked: "He may have assumed it's too late now."
Growing wistful in his tone, Souter said he had found it "impossible not to do a mental reckoning" as he reflected on his final visit to the 3rd Circuit as its circuit justice.
The room was hushed as, in a contemplative voice, Souter said he had turned to the poetry of Algernon Charles Swinburne and was struck by the line: "Such fruit as men reap from spent hours and wear."
Souter said he asked himself, "What are the fruits that I have reaped?"
The answer, Souter said, could be found in a lecture from 2nd Circuit Judge Learned Hand, who said: "It is as craftsmen that we get our satisfaction and our pay." It is lawyers, Souter said, who give us the laws we order our lives by, who defend us when we are accused, prosecute those who harm us and decide our disputes. Without lawyers and the lawyers who go on to be become judges, he said, society would be prone to "private acts of vengeance."
Quoting the late 8th Circuit Judge Richard S. Arnold, Souter said: "There has to be a safe place and we have to be it."
Souter said he found Hand's metaphor of the craftsman to be "on the money" because it helped describe the value of what judges and lawyers do in the everyday lives of their fellow men.
Only the rare case, he said, leads to an opinion that will be quoted for decades to come.
"How many people in this room have ever cited to a case older than 50 years, or 40 years?" Souter asked.
Most of a judge's or lawyer's work, he said, "sinks into the stream pretty quickly."
But Souter urged his colleagues to find fulfillment in "being part of the great stream."
It's been said that President Obama's appointment won't be a transformative one. That's true in one sense. Justice Souter generally voted with the moderate to liberal justices, and his replacement will almost surely do so also. In terms of net votes, the liberal/conservative balance will not change. But the vacancy offers Mr. Obama an early opportunity to make a lasting mark on the country.
That's because he can do more than appoint a reliably liberal jurist – which wouldn't greatly affect the court's rulings. He can appoint a jurist with that rare ability to persuade her conservative colleagues – which emphatically would affect the court's rulings.
Such a quality will be vital in the years ahead. Think how many crucial issues – from the 2000 election to gun control to eminent domain – have been decided by 5-to-4 rulings in recent years. Obama's nominee may well serve on the bench for the next 30 years. In just the next few years, her ability to build a coalition, or lack thereof, could decide the answers to such high-stakes questions as abortion, same-sex marriage, race-based affirmative action, and privacy.
Thus, the community-organizer president needs to pick a coalition-builder justice.
Just hours after news broke that Supreme Court Justice David Souter plans to retire, conservative groups launched a fusillade of attacks branding as "radical" and "hard left" candidates believed to be on the White House short list.
And anti-abortion groups have already promised war if President Obama, as expected, nominates a replacement who supports legalized abortion — as Souter does.
But despite the clamor, the political reality in a Washington controlled by Democrats strongly suggests that skirmishes with the right will be relegated to a springtime sideshow, leaving the president fully in control of the main stage.
"Whoever Obama picks will be confirmed," says Jonathan Adler, a court expert and professor at Case Western Reserve University School of Law.
1. There will be a huge confirmation battle no matter whom the President nominates and it will have virtually nothing to do with the academic credentials or intellectual abilities of the nominee. Conservative groups were already railing Friday against what they're calling the current "liberal, activist" Supreme Court (what say you about that, Messrs. Roberts, Alito, Scalia, Thomas and Kennedy?), so it' clear where this will go even if the President selects, as some suggest he will, a "on-ideologue" (whatever that means).2. The White House will factor into its selection the virtual certainty that there will be one or even two more opportunities during the next four years to replace justices on the Court. This will enable the President to reassure the constituency that "loses" this round (i.e. Hispanics, if a woman is chosen) that their turn will come soon enough. This will likely reduce intra-party friction even as it complicates the "bank shot" for the President.3. There is a material difference between being a political conservative and a legal conservative, just as there is a difference between a political liberal and a legal one. Justice Souter was despised on the right because he wasn't a political conservative - though he was a legal one. Justice Scalia is adored by the right because he is a political conservative, even though he isn't always a legal one. Be careful of these sorts of convenient but inaccurate labels when the nominee is announced.4. Unless the President suddenly loses his mind, the White House will select someone who is extraordinarily bright, hard-working, honest, and dedicated to public service. The current crop of candidates is very deep and talented - which happens when one party goes 15 years between Supreme Court appointments. In other words, this isn’t "Celebrity Apprentice," and it will be very hard for the White House to screw things up.5. No matter whom the President selects, the Court's ideological make-up will not change dramatically. In fact it is unlikely to change at all. The White House is going to select a "moderate-liberal" jurist to replace a "moderate liberal" jurist, and it will be a wash just as the transfer from conservative Chief Justice William H. Rehnquist to conservative Chief Justice John G. Roberts, Jr. was a wash a few years ago. The Court currently is, and will remain post-Souter (short-term, anyway), a conservative-moderate Court with Justice Anthony M. Kennedy as its pivot. We'll still see those familiar 5-4 rulings on contentious issues.6. To illustrate that point, the Court will have turned over by fully one-third in just the past four years. Gone are Justices O'Connor and Souter and Chief Justice Rehnquist. In their place are Justice Alito, Chief Justice Roberts and the Obama appointee. Unless that appointee is Michael Moore (and it won't be), the Court will be at least as conservative in 2010 as it was in 2005. And this will remain so if liberal Justices Ruth Bader Ginsburg and John Paul Stevens retire before the President's first term expires.7. American people will be better able than ever before to gauge for themselves the nominee's experience and philosophy. Even more so than in January 2006, when Justice Alito was confirmed, our ability to research and share information via the Internet means that no one who really cares about the process - and the result - is excused from being ignorant or duped. Don't just read or watch what analysts and commentators say about this person, do a little research yourself!8. The nominee will invariably fail to adequately answer a great many good questions during his or her confirmation hearing. This time, the Republicans will howl that the answers are too incomplete and that the candidate is hiding something - precisely as the Democrats howled that nominees Roberts and Alito weren't leveling with them during their confirmation hearings a few years ago.9. Accordingly, to be true to its theme of governmental "transparency," the White House should encourage its nominee to be expansive with his or her answers during the confirmation hearing. No more stone-walling. Even the so-called "Ginsburg Rule" (by which subsequent nominees have refused to specifically answer questions about legal issues and topics which they contend may come before them as justices) ought to be limited. Someone, some party, has to break the destructive cycle by which these life-tenured people get to skirt candor in the name of discretion and expedience.10. In the end, no matter how loud the howls inside the Committee and in the echo chambers beyond, the nominee will be approved by the Senate and become the next Justice of the United States Supreme Court. We all know how this story ends. We just have to sit through all the chapters to get there.
53, is the former dean of Stanford Law School, teaches constitutional law there, and has authored the nation's leading constitutional law casebook. She is chair of the National Appellate Practice at Quinn Emanuel Urquhart Oliver & Hedges. A one-time Marshall scholar, Sullivan's constitutional knowledge is prodigious. Her former law professor Laurence Tribe once called Sullivan "the most extraordinary student I had ever had." The National Law Journal has twice named her one of the "100 Most Influential Lawyers in America" and has twice named her as one of the "50 Most Influential Women Lawyers in America." Today Politico reported that she was a lesbian; she did not comment.Sullivan is a gifted oral advocate and has argued five cases at the Supreme Court, notably several important business cases in recent years, including an appeal representing wineries challenging bans on the direct shipment of wine to consumers living out of state. She was also a member of the legal team that challenged the McCain-Feingold campaign finance law. Sullivan has filed amicus briefs in two seminal gay rights cases at the Supreme Court, Lawrence v. Texas and Bowers v. Hardwick, and authored an amicus brief in a case involving the constitutionality of gay marriage in California. She is also well-known for her pro bono work in high-profile cases involving civil rights and civil liberties. In a brief she co-authored in a landmark case about warrantless NSA wiretapping, she wrote, "Whatever inherent powers the President might have under Article II, they do not include the power to conduct a warrantless domestic surveillance campaign, of indefinite duration and unlimited scope, where a duly enacted statute expressly prohibits such conduct."
50, teaches law at Stanford University. As founding director of the school's Supreme Court Litigation Clinic, she has helped represent dozens of defendants in criminal and civil rights matters, all free of charge. An expert on constitutional and election law, Karlan has served as assistant counsel at the NAACP Legal Defense and Educational Fund. Karlan has authored three leading casebooks on constitutional law (one of which Obama taught from) and is co-author of a brand new book, Keeping Faith With the Constitution, which offers a progressive theory of jurisprudential interpretation. Karlan confirmed to Politico that she is "counted among the LGBT crowd." Karlan, whose legal writing is both trenchant and prolific, has become something of a rock star on the legal conference circuit.Karlan has no judicial record to probe, but she has an immense collection of writings. She argued at the Supreme Court in defense of the Voting Rights Act and wrote an amicus brief on behalf of legal academics in the 2003 case Lawrence v. Texas, arguing that laws against consensual sodomy were unconstitutional. She has defended criminal defendants in police search cases at the high court and has been a strong advocate for gay marriage.
53, has a string of firsts to her name—she's the first African-American woman to be a superior court judge in Georgia, the first appointed to the state Supreme Court, and the first to become the chief of that court, after then-Gov. Zell Miller appointed her to fill a vacancy. In 2004, conservatives waged a major campaign to unseat Sears by throwing money at her opponent. She prevailed with 62 percent of the vote.
Sears calls herself "a moderate with a progressive streak." She doesn't sound like a lefty when she campaigns for a pet cause: strengthening marriage. "As a judge I am often frustrated that I must work within a system designed only to pick up the pieces after families have already fallen apart or failed to come together," she wrote in a 2006 Washington Post op-ed. Sears, who is divorced herself and has two children, is thoughtful rather than pat on the topic: While she worries about kids who grow up in single-parent families, she said in a 2007 speech that "as a woman who came of age at the height of the feminist movement, I do not really hold naive notions about the so-called good old days, Ozzie and Harriet and that kind of thing." Twin fun facts from this 2005 profile: Sears annoyed some of her civil rights allies by inviting her old friend Justice Clarence Thomas to her inauguration, and she named her daughter Brennan, after one of the Supreme Court's liberal lions, former Justice William Brennan. She has said she plans to leave the Georgia Supreme Court in June to pursue other opportunities, rather than for health reasons. By leaving the court midterm, Sears will give Republican Gov. Sonny Perdue the chance to tilt the court to the right when he names her replacement—to the great frustration of those who fought for her election. "It is very disappointing," said Stephen Bright, president and senior counsel of the Southern Center for Human Rights.
Notable cases: As a state court judge, Sears hasn't built a long record interpreting federal law. She wrote the 2007 ruling that released Genarlow Wilson from prison, based on the theory that his 10-year sentence, for having sex with a 15-year-old girl when he was 17, was "grossly disproportionate to his crime." In 2008, she dissented from a ruling of her court upholding the death sentence of a man who killed an off-duty cop. Seven of the nine witnesses against the defendant had recanted, some of them saying their trial testimony had been coerced. Sears said the court was skirting the "fundamental question": whether an innocent man was being put to death. She also opposed, in 2004, the Georgia Supreme Court's decision to allow on the ballot an amendment to the constitution that succeeded in banning same-sex marriage.
54, is so far at the top of most shortlists, she is arguably a shortlist unto herself. A summa cum laude graduate of Princeton with a law degree from Yale, she'd be the first Hispanic justice (depending on how you count Benjamin Cardozo). She is reportedly Catholic (she went to Cardinal Spellman High School in the Bronx), which would make her the sixth Catholic on the Supreme Court. Sotomayor grew up in the Bronx in a housing project, and at age 8 she was diagnosed with diabetes. Her father, a manual laborer, died when she was 9. She was appointed to the U. S. District Court for the Southern District of New York in 1992 by President George H.W. Bush, and Bill Clinton elevated her to the United States Court of Appeals for the 2nd Circuit in 1998. She is seen by most as a fairly moderate jurist, although Sotomayor is famous for being outspoken and quite brash on the bench, a quality for which she is now being criticized.Notable cases: Sotomayor is responsible for the opinion that ended the Major League Baseball players strike when, in 1995, she issued an injunction against MLB owners and for an order allowing the Wall Street Journal to publish Vince Foster's suicide note. She ruled against the government in a case involving the Hells Angels. Last year, she was on a panel that ruled against a high-school student punished for posting an objectionable message on an Internet site. One of her more controversial moves was a ruling last year in a New Haven, Conn., affirmative action case that allowed the city to scuttle the results of a firefighter promotions test because no African-Americans could pass the test. Not only was the opinion controversial on its face, but it was less than one page long and seemed to duck the hard issues, prompting a strong call by 2nd Circuit Judge Jose Cabranes for the Supreme Court to hear the case—as the justices did at the end of April.
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