Souter's Replacement

Sunday, May 03, 2009

I know this isn't new news, but I have been interested in the discussion over who people think should replace Justice Souter. I have heard a variety of responses, from "who cares" from the far right, to some on the left suggesting a "liberal Scalia." I have always been somewhat puzzled by the reaction that Scalia gets. In many ways, he seems to be a right-wing version of Ted Kennedy, a kind of righty boogeyman. Most of the criticism he gets seems to be from people that haven't bothered to read any of his opinions or follow his voting trends (this does not apply to the well-informed readers of ATK).

I have read many suggestions and the following people seem to be on Obama's list: Sonia Sotomayor, Merrick Garland, Cass Sunstein, Eric Holder, Elana Klegan, and Diane Wood. Some of these names I know, but others are people I have no idea as to ideology and opinion. This article on How Souter's Replacement Could Change the Court, from Volokh, is one of the more thoughtful I have read. At least more thoughtful than some of the tirades coming out. I tend to agree with the author. As much as I enjoy reading Scalia's opinions and find him to be thoughful and logical (even when I disagree with him), it isn't helpful if you are unable to faishion any kind of working solutions. I am certainly not suggesting that people of principle should just go along with everyone else, but if you are unable to convince others of your reasoning on a consistent basis, then maybe you are being too contrary.

I prefer a somewhat balanced court that tends to take a pragmatic view of what they are doing. As much as I tend to be a textualist and conservative, there are times when the Court has stepped out of this mold and done something that was good for the country. I also don't think it is a good thing when the court strays too far to the left or right. In the end, the discussion between the left and right is probably good for crafting solutions that are beneficial. Personally, I'd like to see Obama appoint a left-leaning moderate.


Bob 8:05 AM  

Andrew Cohen at has an interesting article on this. I am interested in hearing Steve’s take is this piece:

“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.”Source:

Another interesting tidbit, he calls it for Jennifer Granholm:

My pick: Michigan Gov. Jennifer Granholm. Woman? Check. Not a sitting judge? Check. Smart? Check. Consensus-builder? Check. Hard for Republicans to bork? Check. Then again, what do I know? I picked "I Want Revenge" to win the Derby. He didn't even make it into the race.”

Smitty 8:51 AM  

Out of all the candidates on the list, the only one I know anything about if Holder. I told myself that I would get more involved in Supreme Court nominees as I am in political races, but I am not off to a good some readin' to do.

I think Bob's piece fits in exactly with what steves is saying; a political and a legal conservative are not the same. A political moderate-liberal who is a legal conservative would be a fine pick by me. The question is: who the Hell is that??

As for Granholm...consensus-builder? I know she tries at it, and has been stone-walled by a party that wants nothing to do with her positions. But the question remains as to how well she reached-out: was what she was offering too distasteful for Michigan Republicans to agree with? She plays petty politics just as well as anyone. As for "hard to 'bork'" the worst they can get her on is backing the tax increase and the overly-silly new Michigan business tax, but those hardly matter for a Supreme Court Justice. As for female and not a sitting judge, sure. Those are easy for her!

Having Granholm seated on SCOTUS will play into the strategy of having Cherry step-up and act as Guv, giving him an incumbent edge in 2010, which he needs pretty badly. This was originally supposed to work for him right after the election; Granholm was most certainly slated for an appointment. But that fell through. Here's plan B?

B Mac 1:40 PM  

In general, my only request that he appoint a Scalia of the left (thoughtful, intelligent, logical, consistant) NOT the Thomas of the left (knee-jerk, We-should-reconsider-everything-since-Marbury-v-Madison pain in the ass)

steves 2:27 PM  

Bob, interesting piece. I agree that there is a difference between a political conservative and a legal conservative. In my mind, a legal conservative is mostly a textualist that also gives a great deal of emphais to original intent and stare decisis.

I don't know if I would agree that Souter is a legal conservative, bu my definition. He was on the wrong side (IMO) of Heller and Kelo. In the most recent term, the Justice he most often voted the same as was Ginsburg, who seems to be fairly liberal. One thing the author I agree on is avoiding labels. I think it is important to look at a nominees history and see how fair they were and how they approached the deicision making process.

Granholm is an interesting pick. I haven't heard her mentioned anywhere else. On first glance, I would support her, as I think she is fair minded and very intelligent. I also like John Cherry and think he would make a good Governor, so that would be a win-win situation for Michigan.

As for a political moderate-liberal who is a legal conservative, I wouldn't say Holder. Cass Sunstein of the past fits that mold, but he has done a few things recently that would make me question that. Elana Kagan is the current Solicitor General and was the Dean of Harvard Law School. Besides being a very intelligent woman, I don't know much about her.

Mike 6:44 AM  

Scalia of the left (thoughtful, intelligent, logical, consistant) NOT the Thomas of the left (knee-jerk, We-should-reconsider-everything-since-Marbury-v-Madison pain in the ass)I completely disagree with this take. Based on all the opinions I've read since law school, I think Scalia is the biggest bullshit artist to sit on the bench. Always rationalizes his holdings to match his supposed "original intent" bullshit, or whatever else he calls his paleo-conservative nonsense. He's as political as it gets, he changes his jurisprudential style whenever it suits him, he's snarky & obnoxious, and his views are repulsive.

Thomas, on the other hand, catches so much grief for no reason. I don't agree with his philosophy at all, but he applies it consistently, neatly, tersely, logically, and intelligently. In a warped way, he's my favorite justice.

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