Finding a new Souter

President Obama will soon name his first Supreme Court nominee.  It should come as no surprise that a liberal justice on the Court for nearly 19 years would choose now to retire, when he can be assured that his replacement will be of a like-mind.  While the President might be wet behind the ears on the international scene, the same cannot be said of his political sense.  The President has already announced he is seeking a justice that will care about families and jobs.  Words that will resonate.  It seems certain Justice David Souter’s successor will hold unassailable liberal credentials.  But first a little history.

Justice Souter was appointed to the highest court in 1990 by then President G.H.W. Bush.  At the time, Souter was unknown, his appointment pushed by former New Hampshire Governor and Bush’s Chief of Staff, John Sununu, and Senator Warren Rudman (R-NH).  While we can clearly see Sununu and Rudman’s motives, it is bewildering to comprehend the elder Bush’s motives.  It appears Bush thought he could outsmart Senate Democrats and avoid another Bork disaster.  He decided to nominate a candidate who’s views would be hard to attack and difficult to document.  It was a strategy that was not very well thought out.  Just as sure as Senators could not be certain of Souter’s positions, neither could President Bush.

G.H.W. Bush had never been a strong conservative, so one might understand how he could have missed a huge warning sign hanging over David Souter’s name.  Mainly that Souter, not only had been a Director at Concord Hospital while abortions were being performed there, but in 1973, David Souter authorized abortions in opposition to NH laws of the time and only 3 weeks following Roe.  (No sooner had Roe v. Wade been argued than Souter was promoting abortion at his hospital.)  The Bush administration either missed this fact or the vetting process was so obsessed with finding someone acceptable to Democrats such as Edward Kennedy (D-MA) that they simply didn’t care.

Left-wing Liberalism is the new Moderate.

This history lesson is unlikely to escape President Obama.  He is under incredible pressure to appoint a liberal minority, preferably a minority woman.  Don’t expect a moderate as the Boston Globe suggests.  Oh but wait, the Globe refers to Justice Souter as a moderate.  Interestingly, this brings me to my point.  I had not read the Globe story when I began this essay, but in the course of continuing research I stumbled upon this gem.  The core thesis of my essay is that the media and the administration will portray whoever is nominated as a moderate.  My initial research nearly proved this theory wrong.  The New York Times suggested several candidates holding strong liberal credentials and touting that sex and racial prejudice would (and perhaps should) be a deciding factor in Obama’s nominating decision.  (Wow.  I have to take a mental breather hereWhenever discrimination occurs in favor of minorities it is held up as virtuous, while it is decried when minorities suffer – somehow this passes as completely reasonable to most Americans and all liberals.  I was raised on the idiom, “Two wrongs don’t make it right.”) However, the Boston Globe and then The Christian Science Monitor, bailed me out by beginning what I am certain will be the mainstream logic going forward.  Later in the day CNN declared Souter “a strong defender of rights,” I suppose it depends on what you call rights.

It must be this way in order to make the case that all conservatives are radical.  If they can re-educate American idiots that justices like Souter are moderate then it is a far easier thing to portray any conservative as part of the lunatic fringe.  This is the evolution from the War on Terror to the War on Conservatives.  It blows my mind that a justice who advocates partial birth abortions – but opposes the death penalty, denies Fourth Amendment protections to ordinary citizens – while insisting on civilian treatment for enemy combatants, – opposes the Second Amendment, and denies the First Amendment applies to high school graduations, could be referred to as moderate or anything other than very liberal.  Neither do I see how someone with these opinions can be referred to as a “defender of rights.”  Yet he is, only because of his consistent pro-abortion stance.

Get ready for endless speculation – or are those suggestions?

In the meantime, speculation will run rampant on who Obama will choose.  The President has only said he is looking for someone who has “empathy,” is intelligent, and of coarse, “an independent thinker.”  I read Obama saying, “someone just like me,” but then I’m a cynic. However, the biggest shocker was this statement: “I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a casebook; it is also about how our laws affect the daily realities of people’s lives, whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation.”  As I mentioned before, Obama knows politics if nothing else.  These words are completely political since they make absolutely no sense in context of the Supreme Court.  Supreme Court Justices are supposed to reason at a higher level, they should be very well versed in historical legal precedence and abstract legal theories.  This is actually the job description. But apparently, the President wants to politicize this appointment.  Hell, why not just appoint a political contributor, after all we can’t expect any critical thinking from the press so why should we expect it from a Supreme Court Justice?  Just make sure the nominee is a compassionate and caring person.  (A little twist on the Billy Crystal routine from SNL, It is better to feel good than be good.)

The announcement is only hours old and the press is already busy making it’s suggestions for possible replacements.  I have attempted to list the top ten names.  I have to warn you, some of these people make no sense at all,  however, we no longer live in a sane world.  The top ten candidates being bantered about include the following:

  1. Sonia Sotomayor: U.S. Court of Appeals for the 2nd Circuit.  Hispanic female.
  2. Diane Wood: 7th Circuit appellate judge. Female.
  3. Elena Kagan: Incoming U.S. solicitor general. (Held a position as a clerk but has no judicial experience. Her only qualification seems to be that she has breasts.) Female.
  4. Jennifer Granholm: Governor (D-MI) and Former Federal Prosecutor.  Female.
  5. Kathleen Sullivan: Former Dean Stanford Law School and former Harvard law professor.  Female.
  6. Leah Ward Sears: Georgia Supreme Court Chief Justice. (First African American woman on the Georgia Supreme Court.) African-American female.
  7. Kim McLane Wardlaw: 9th Circuit Appellate Judge.  Female.
  8. Deval Patrick: Governor (D-MA) and former Assistant Attorney General.  African-American male.
  9. Harold Hongju Koh: Dean of Yale Law School and nominated by Obama for legal adviser to the State Department.  Asian-American male.
  10. Hillary Rodham Clinton:  Secretary of State and former attorney.  Female.

Notice any pattern in these speculative nominees?  Just because Ruth Ginsburg needs a little female bonding on the job, the press feels it’s their job to ensure the job gets filled by a woman, a liberal woman.  Well, one thing is certain; we won’t find Judge Judy’s name showing up anywhere, anytime soon – even though she is far more qualified than, say, Elana Kagan.

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    • Ahmad
    • April 10th, 2014

    Three points:First, I love the artiadcles on SC cases; keep ‘em cmonig.Secadond, regardading hearsay. I tesadtify often (in civil, adminadisadtraadtive cases, but I think the rules are the same) as an expert. The whole point of expert tesadtiadmony, as opposed to peradcipadiadent tesadtiadmony, is that an expert is allowed to draw inferadences that are not supadported by first hand peradcepadtions. I don’t have to say “I looked at those transadmisadsion line towaders and they are poorly designed.” I can say, “I looked at the foladlowading pieces of paper, and conadcluded from them, based on my experadtise, that the transadmisadsion line described by those pieces of paper is poorly designed. So in the DNA case, it’s easy to see how there could be an expert who is capaadble of readading DNA test results and conadcludading from them that the test results imply X with a level of probadaadbiladitya0Y.Third, regardading the issue before the SC. Just because an expert could legitadiadmately tesadtify as to the meanading of a DNA test withadout havading peradformed the test themadselves, that doesn’t mean the peradson who peradformed the test shouldn’t also have to tesadtify. My own take is that the 6th amendadment would still apply to the lab tech. The defenaddant should have the right to cross examadine the lab tech to veradify things like (a) what they did, (b) what proadtoadcols they foladlowed, (c) how they veradiadfied that the comadparadiadson samadples that were allegedly known to be from the defenaddant were in fact from the defenaddant, (d) what meaadsures they took to avoid varadiadous kinds of potenadtial cross-​​examination, (e) whether they checked for exculadpaadtory eviaddence. Those are all things that the expert who reviewed the DNA report might not be able to tesadtify about, but the peradson who peradformed the analyadsis could. For examadple, in a trial on which I was recently a juror, the prosadeadcuadtion did DNA testading showading the defendant’s DNA on a ceradtain enveadlope; but they also found eviaddence of a secadond person’s DNA on the same enveadlope, and there was direct tesadtiadmony from a non-​​defendant that he had re-​​used the enveadlope after getadting it from the defenaddant, tesadtiadmony which if true would have conadtraaddicted the prosecution’s veradsion of events. But the prosadeadcuadtion never tested whether the non-​​defendants DNA matched the 2nd person’s DNA on the enveadlope. The jury reached a deciadsion anyadway, but the prosadeadcuadtion did their case no good by their incomadplete DNA analyadsis, which we jurors would never have known about if the peradson who did the DNA analyadsis had not been cross-​​examined.So in the case at hand, it looks to me like the prosadeadcuadtion was fully within their rights in havading an expert tesadtify as to what the DNA report meant, but the defense was fully within their rights in seekading to cross-​​examine the peradson responadsiadble for doing the work that creadated the DNA report in the firsta0place.a0

    • First you’re off-topic, no one is talking about criminal law. Second you need to learn how to spell, you come across uneducated when 80% of your words are misspelled. I get that phones are difficult to type on, but this is extreme.

      Otherwise, thanks for the comments. I often suspect spam when I see so many misspellings, but I can’t find any links, sorry if I’ve misread you.

  1. November 4th, 2009

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