Interesting article – the White House doesn’t want another Souter. Personally, I just don’t think Justice Souter is such a bad guy and I liked how this article indicated that there were clues that Souter’s jurisprudence wasn’t based on conservatism, but that George Bush’s folks didn’t seem to see it:
President George H.W. Bush never knew Souter; he relied on his chief of staff, former New Hampshire Gov. John Sununu, to vouch for his fellow New Hampshirite’s conservative credentials. Sununu’s perception of Souter, whose constitutional paper trail was skimpy and who was viewed as the ultimate stealth candidate, was apparently blurry as well. [….]
It is an article of faith among doctrinaire conservatives that the Souter nomination was a bait-and-switch operation by the first Bush administration. But was it? There are many who watched Souter’s 1990 confirmation hearings, including his mentor and champion for the Court, former New Hampshire Republican Sen. Warren Rudman, who say his Supreme Court record is entirely in keeping with his Senate confirmation hearings.
“I’ve never figured that one out,” says Rudman, now a partner in the D.C. office of Paul, Weiss, Rifkind, Wharton & Garrison. “Anyone who ever listened to his testimony would know that he was a judge in the model of [John Marshall] Harlan or [Felix] Frankfurter. He certainly wasn’t in the mold of a real conservative.”
That’s not how John Sununu sees it. “Souter is absolutely different from what Souter and Souter supporters represented he was, not only during the vetting process but during his whole career,” says Sununu, in a telephone interview from Salem, N.H., where he is an engineering consultant.
“There is no question in my mind that [then-White House Counsel] C. Boyden Gray and [then-White House Associate Counsel] Lee Otis, both of them die-hard conservatives, vetted Souter’s credentials,” Sununu says. “All the questions were asked of Souter relative to the interpretation of the Constitution. They probed around specific issues as much as was perceived to be good custom. And every answer was indicative of what the president wanted. Everybody is disappointed, and with all due respect to those who were not, they were part of the deception.”
Gray, who has recently been nominated as U.S. ambassador to the European Union, declined to comment. Otis could not be reached.
That Souter was not the man Sununu had portrayed to conservatives was most vividly illustrated just two years after he was confirmed, when Souter co-authored, along with Justices Anthony Kennedy and Sandra Day O’Connor, one of three plurality opinions in Planned Parenthood v. Casey. That case, which conservatives had dearly hoped would overturn Roe v. Wade, instead reaffirmed it while imposing a new, “undue burden” standard to determine an abortion law’s legality.
Says Tinsley Yarbrough, a Souter biographer and political science professor at East Carolina University: “Souter was the key person writing that part of the opinion emphasizing the need to stand by precedent, especially when there’s public opposition.”
But that was only the beginning. Souter, says Edward Whelan, head of the Ethics and Public Policy Center in Washington and a former clerk to Justice Antonin Scalia, “has been wrong virtually every time in closely contested cases of constitutional law.”
Still, if Souter’s White House vetting was problematic, his confirmation hearings were revealing. Mark Gitenstein, former chief counsel to then Senate Judiciary Committee Chairman Joseph Biden, D-Del., says he remembers Biden quizzing Souter about how he would determine fundamental rights under the 14th Amendment. “The answer is, we cannot, as a matter of definition at the beginning of our inquiry, narrow the acceptable evidence to the most narrow evidence possible,” Souter said.
That broad standard, and Souter’s expansive statements about unenumerated rights, reassured the Delaware Democrat. Says Gitenstein, “I remember talking to Biden and Biden said, ‘I have to vote for him as a result of that answer.'”
Souter cleared the Judiciary Committee on Sept. 27, 1990, with Sen. Edward Kennedy, D-Mass., the only dissenting vote. He was confirmed by the full Senate 90-9.
Another former Senate Judiciary Committee staffer, a Republican whose current job doesn’t allow him to talk on the record, also has a vivid recollection of the hearings, especially when Souter was asked to list the high court’s most important cases. “He specifically highlighted Baker v. Carr,” says the former Judiciary staffer, referring to a 1962 case that ruled that legislative redistricting cases could be heard by the courts under the equal protection clause of the 14th Amendment.
“And I remember telling my Democratic colleagues, ‘I don’t know what you’re so worried about. I don’t think Souter’s going to be Bill Brennan.'” Souter’s citing of that case, says the former staffer, “told me that this is not a guy who is at intellectual war with the left. Of course, I had no idea he’d turn out as liberal as he did, but he was definitely not a [Robert] Bork or a Scalia.”
It wasn’t just at the hearings that Souter made clear his centrist thinking. His 200 or so opinions, written during a 12-year stint on the Superior Court of New Hampshire and the New Hampshire Supreme Court, and during his months as a judge on the 1st U.S. Circuit Court of Appeals, also made that evident.
“Conservatives have been saying, ‘No more Souters, no more Souters,'” notes University of Chicago law professor David Strauss, who was a special counsel to the Senate Judiciary Committee during Souter’s confirmation hearings.
“But I read all of Souter’s lower court decisions, and I predicted at the time of the hearings, in an internal memo, that Souter wouldn’t vote to overturn Roe,” says Strauss, who was then working for Biden. “If you read his opinions and ask yourself, how does this guy approach judging? Souter doesn’t just say he’ll go by precedent — precedent orients his legal universe.”
Strauss’ view is not shared by everyone, however. According to one former high-ranking official from the first Bush administration active in judicial vetting, the problem with Souter’s judicial opinions was that they were not the types of cases that test broad constitutional principles. “They were pretty garden-variety type of issues,” he notes. [….]
Sorry that Sununu felt that he was “deceived.” But, I don’t think Souter really intentionally presented himself other than what he was – a personally conservative sort (by nature) who wasn’t going to be closed-minded (another sort of conservative, and certainly not attractive) or ideological or “political” when he’s supposed to be, well, judicial. If you’re looking for a Right Wing Conservative, well, that just isn’t acceptable to me (and jeez, if Senator Joe Biden (D-Del) likes you and voted for you, what does that tell you about you?). And, say that it was a bait-and-switch – well, I just never bought the idea that George H.W. Bush was that convincing a Right Winger, despite any overtures to them. I just don’t think he hates Souter as much as the Right Wingers do, and maybe he didn’t really want to pick a Right Winger for the Supreme Court (I mean, isn’t that what Thomas is there for?), or maybe the Right Wingers are overdoing with the hating. Or the reality is, you just never know what you’re going to get until a few years pass and then you’ll see what your justice is…
Seeing old reruns of “Calvin and Hobbes” in the comics has been nice, even if it’s just done to publicize the new Calvin and Hobbes book. So, where is Bill Waterson, the creator of Calvin and Hobbes? Well, apparently, now that he doesn’t need the money, he’s enjoying his art as he intended, and is reclusive (or just enjoying life outside the public eye; human behavior is in the eye of the beholder). Hey, I guess as long as he and his family are happy, who are we to complain? I guess.
This article in last week’s Time magazine is soo cool! Our solar system is so strange – so, maybe Pluto isn’t really a planet (but more like the lead planetoid of the Kuiper belt) and maybe there are more planets beyond Pluto (including, but not limited to, “Xena,” Sedna, and others) – or, at least as William Grimes put it, in his review of a book on the solar system, Dava Sobel’s “The Planets”:
What about Pluto, that little scamp at the far end of the solar system? It’s a problem. It achieved planetary status when astronomers sensed a certain something pulling at Uranus and Neptune. Originally, it was assumed that Planet X was 10 times Earth’s mass. Since being discovered in 1930, Pluto has had its size downgraded drastically, to the specklike dimensions it has today, about 1,500 miles in diameter and a mass only two-thousandths of Earth’s. Then, in 1989, Voyager 2 erased Pluto’s reason for being. It found that Neptune and Uranus actually balanced each other’s orbital anomalies, and there was no need to posit a ninth planet.
Ms. Sobel comes up with a happy ending. In the 1990’s, astronomers discovered all sorts of Pluto-like bodies in the Kuiper Belt, a doughnut-shaped zone that extends outward from Neptune to a distance 50 times greater than the distance from the Earth to the Sun. So things are looking up for Pluto, which may have its best days ahead of it, not the last planet, perhaps, but as “the first citizen of a distant teeming shore.”