Tuesday, May 5, 2009

Talking Points on Souter Replacement?

Democrats in the Senate seem to have uniform beliefs about the person President Obama should nominate to replace retiring Supreme Court Justice David Souter. Senator Patrick Leahy believes that President Obama should pick someone "from outside the judicial monastery, somebody who has had some real-life experience, not just as a judge . . ."

Similarly, Senator Arlen Specter has announced that:
I would like to see somebody with broader experience . . . We have a very diverse country. We need more people to express a woman's point of view or a minority point of view, Hispanic or African American . . . somebody who's done something more than wear a black robe for most of their lives.
Senator Harry Reid "hopes that Obama goes outside the existing legal system and finds a former governor or senator, or someone who has 'real life experiences.'"

And Obama himself has said:
I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a casebook . . . It's 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.
Senator Orrin Hatch, who like Specter and Leahy sits on the Senate Judiciary Committee, says that Obama will probably make the selection very quickly -- perhaps even before the end of this week. If President Obama will soon make his announcement, it is very likely that all of the Senate chatter about "life experience" represents talking points designed to create a narrative about the nominee. Stay tuned.

Cynical Outtake
The comments from these guys, espousing the virtues of nontraditional candidates, are somewhat amusing. Leahy, for example, has spent nearly 1/2 of his life in the Senate, first winning election in 1974.

Specter was first elected to the Senate in 1980. He has served in the Senate longer than any other person in Pennsylvania history. He is also the fifth-oldest person in the Senate. Furthermore, he recently switched parties in order to maximize the possibility that he will keep his job.

Reid began his career in Nevada politics in 1967. He became of member of the House of Representatives in 1982, and he became a Senator in 1987, a position he continues to hold. If voters applied the standards that these Senators want Obama to use when selecting a replacement for Souter, it is unclear whether either them would remain Senators.


Infidel753 said...

Someone from outside the judicial monastery.....a woman's point of view or a minority point of view.....a former Governor or Senator.....someone who has real life experiences.....

Sounds like Hillary would fit pretty well.....

Seriously, the prospect of this eventuality is one of the reasons why I never supported Obama. His decision here will affect the direction of the country and the rights of people for decades. Will he choose somebody good or will he waste it on another pointless exercise in "reaching out" to the right wing which will continue to despise and undermine him no matter what he does? This isn't just a symbolic thing like Rick Warren. This is real.

Jason Papanikolas said...

What exactly does "real-life experience" mean? I have real-life experience, but I'd make a terrible judge. Why is real-life experience a qualification for any job (save maybe priest)?

God help us if this is Obama's primary criterion. I could live another Justice Ginsburg over someone with "life" experience, esp. if the life experience comes with the title of politician.

Darren Lenard Hutchinson said...

Jason - the language is a political talking point. I don't think it is meant for the legal community, but for voters.

Darren Lenard Hutchinson said...

Infidel - I hope we do not get a conservative!

Anonymous said...

Dear Mr. Hutchinson: This post of yours is uncharacteristically incoherent. Do you mean that Obama is thinking of appointing a Senator? That's daft, after all the hosannas about Specter accepting thirty pieces of bronze to become Number 60-as-soon-as-Al-Franken-steals-enough-votes Obama Express. Having just bypassed the Senate filibuster with Specter, The One is going to throw it away by nominating a Senator? To be sure, it might be some other political denizen, governor, representative etc. What, in principle, is wrong with picking Justices from outside the circuit courts? The present Court is the first in history where all nine have served on the federal circuit bench. Is it your model of perfection?

As for "I hope we do not get a conservative!" I laugh out loud. What's next, worrying about whether the sun will come up tomorrow morning? The only way your comment makes sense is in defining "conservative." What do you mean by "conservative?" Do you define a conservative as such notorious reactionaries as Billyboy Brennan, or Earl Warren? Only that way does your worry make sense. But then, it becomes laughable.

What are you worried about? The last time a Democratic Prez appointed a Justice who turned out to be more conservative than expected was Byron White, by Kennedy FORTY SEVEN years ago. Compare it to this rogue's gallery of Republican Presidential nominations:

Eisenhower: Warren, Brennan, Stewart
Nixon: Blackmun, Powell
Ford: Stevens
Reagan: O'Connor, Kennedy
Bush: Souter

There's a full bench of turncoats. You might object that some, say O'Connor and Kennedy, were not "real" liberals, i.e. did not consider the Constitution a lump of putty to be molded at the Ivy League law schools's direction. But the answer to that is easy: they would not get rid of such abominations as ROE. The ratchet effect is working at full power in all of these Justices: "conservative" decisions are cancers in the "living Constitution" to be cut out while "liberal" decisions are sancrosanct "superprecedents" which can't be touched.

What's to worry about? You'll get a Justice well to the left of everyone outside of the faculty lounge. The mortality tables promise well for the left. Let Scalia write one too many nasty dissents and burst a blood vessel while The One is Prez with 60 domesticated Senators, and the Left will have a Court ready to hum and Make The World Over. All the Left has to worry about is which lefty gets the spoils. Result: such assassins as Jeff Rosen try to murder the "wrong" candidate, and the heavens may fall. After the years of anonymous assaults on "conservative" Justices, beginning with THE BRETHREN, planted in the fertile soil of ex-clerks on the make, such butchery finally gets noticed. Forget it, the judiciary is about to go for the left in a 2008 landslide.

Sincerely yours,
Gregory Koster
(not of CUNY)

Darren Lenard Hutchinson said...

You have misread my post. I did not say Obama was going to pick a Senator. I believe Reid was the only one who mentioned that. Instead, I said that "life experience" seems to be the narrative. Do you dispute that?

Finally, I am not "worried" about anything regarding the Court. The Supreme Court, despite all of the silly portrayals of the 60s, does not mandate "change." It only operates within the political context that surrounds it. The 60s was a time where progressive social movements and politics impacted legislation, public opinion, and judicial opinions. I would say the same thing about conservative politics in the 80s and 90s.

As for you listing of "mistakes" in terms of judicial ideology, I see a glaring problem: You are conflating "Republican" with "social conservative." The Republican Party changed a lot after the Southern political realignment, and Reagan represented the triumph of social conservatism. O'Connor and Kennedy are not liberals; people view them as liberals because the Court is so rightwing.

It's unclear whether Souter was an "accident." He seems like a straight-shooter to me. I suspect Bush knew exactly what he was doing.

Stevens was very moderate when he joined the bench, and he seems far more liberal today, because the Court has moved to the right, while he has moved slightly to the left. But Ford was not a rightwing extremist. Nor was Eisenhower.

Although I do not believe that social conservatism has lost all of its political influence, it is not the most attractive political approach on many "traditional" issues at the moment. If the Republicans do not "rebrand" and become a lot more like Ford, then they will remain in oblivion.

Infidel753 said...

You have misread my post.

You really think he can read?

Darren Lenard Hutchinson said...

Be nice Infidel.

How's life?

Infidel753 said...

And all the stuff he's said about me was nice?

Darren Lenard Hutchinson said...

Infidel, I probably expect more from you. :)

Anonymous said...

Dear Infidel753: A basic test of being able to read is the ability to sign one's name, like this

Gregory Koster
(not of CUNY; there is a Gregory Koster who is associate dean of CUNY and is not responsible for any of my notions)

You fail this test. "Infidel 753." Good heavens, it's something out of BRAVE NEW WORLD, conjuring up an image of you coming off the assembly line, following 752 other clones, all squawking to teacher that GK is writing not nice things about you...In this world, anonymous letters are generally regarded as contemptible, largely because they imply a one way conversation. Anonymous can speak, but the recipient can't reply. Or are you claiming the age-old justification of anonymity or pseudonymity: that your life/career/community standing will be menaced beyond repair by revealing your true identity? That makes me snicker. You seem to have an identity worth knowing, if Mr. Hutchinson's plainly affectionate regard mean anything. Why not show the world who you are? Take responsibility (credit and blame) for what you write. The implications that you live in fear and trembling, or that your true identity is so august that you must assume a pseudonym lest the rest of us be blinded by your coruscating brilliance makes me, um, snicker. My bet is that your true identity is, like most of us, mundane, neither brilliant nor trembling in fear. Why not show the world the qualities that make the proprietor of this blog esteem you? Your choice of pseudonynmity has evil effects. When I wrote that you slept with a copy of DREAMS FROM MY FATHER under your pillow, the proprietor of this forum got annoyed enough to write me that such a statement was laughable. Never has he expressed the truth more exactly: the statement WAS laughable. But the evil effects of your false identity made him miss the point completely: he didn't laugh, brightening his day, prolonging his life, and being wiser for doing so. Goodness, the way of the light bringer is hard...

Dear Mr. Hutchinson: There's a lot to your post, that I don't follow. At random: you write about Souter:

"He seems like a straight-shooter to me. I suspect Bush knew exactly what he was doing."

Straight-shooter? His paper record was thin to being invisible at the time of his nomination. He was sold to Bush 41 by Sununu as being a conservative home run. A straight shooter would have hollered stop, here's what I believe---and been left on the circuit bench by a GOP that has been disappointed again and again by left drifting Justices put on the bench by GOP presidents.

"Bush knew what he was doing?" Let's adopt what the geometers call an indirect proof: OK, Bush knew what he was doing when he nominated Souter. One year later, he nominated Thomas. It's fair to say that while Thomas & Souter are not 180 degrees apart, they are 170+ degrees apart. Tell me the "Bush knew what he was doing" formula that will encompass both nominees. There's only one answer: Bush wanted to nominate near opposites to split the Bench and paralyze it. This is laughable (and I hope you laugh like crazy at it.) What's far more likely is that Bush relied on Sununu and Warren Rudman who enthusiastically fooled themselves and then went to work on Bush. Souter went along out of vanity; it's flattering to be appointed to the Supreme Bench. Result: another left drifting GOP nominee on the Supreme Court and Bush41 agreeing with Eisenhower that one of his worst mistakes sits on the top bench...

Next: "Instead, I said that "life experience" seems to be the narrative. Do you dispute that?"

I dispute that it is a "narrative." Perhaps I am being naive. But I think that the notion that only members of the federal circuit benches should be on the Supreme bench isn't working well. I think there is wide dissatisfaction, which is not necessarily a plot emanating from the sinister rages of Rahm Emanual's shoe leather conscience. Once we go outside the circuit benches, Senators become a possibility. That so many Senators are singing these lyrics makes me think that some are angling for the job. I think such angling is wasted, given the 60 seats needed on the Obama Express. Perhaps the singing Senators figure that a Democratic governor would appoint a Democratic replacement for any Senator who went on the bench. Certainly the appointment process of the last six months gives cause to think that Senate seats are just so much dynastic personal property to be bought, sold or leased.

Next: "If the Republicans do not "rebrand" and become a lot more like Ford, then they will remain in oblivion."

You're very funny today. How many presidential elections did Ford win? Two, actually: under the pseudonym Geo. W. he won the 2000 and 2004 elections (the 2000 result had a distinctly sour taste, I admit.) Don't believe me that Geo. W. was a moderate? What is No Child Left Behind or the Medicare Prescription Drug benefit but Nixon-Ford moderation? His conflict resolution style was right out of the Johnson-Nixon-Ford playbook: get a Congressional resolution authorizing use of force, carefully saying it isn't a war, tell everyone to go shopping, and let the Executive get on with it. I repeat, that's right out of the Johnson-Nixon-Ford playbook. What, aside from his judicial nominations, can properly be called conservative about Geo. W.? I can't think of anything offhand. But his "moderate" conduct tore this nation apart, and gives the prosecution a swell case against him in the historical ranking contest that consumes so much Presidential thinking.

Finally: "The Supreme Court, despite all of the silly portrayals of the 60s, does not mandate "change." It only operates within the political context that surrounds it. The 60s was a time where progressive social movements and politics impacted legislation, public opinion, and judicial opinions. I would say the same thing about conservative politics in the 80s and 90s."

"The Supreme Court does not mandate change." Let's get in our time machine and go back to Boston in the 1970s, where you can tell the "poor Irish" sections that the Supreme Court had nothing to do with their kids being bused. We'll both wear running shoes so we can sprint for our lives after your speech...Another example: Did the conservative Supreme Court of the 1980s and 90s repeal ROE? No? Why didn't they follow "the political context that surrounds it?" Even worse for your case: the death penalty. Thurgood Marshall successfully abolished the death penalty in 1972, against a great deal of opposition, particularly in the South. But OK, we'll grant your premise that the nation at large wanted to abolish the death penalty as part of "the political context that surrounded it." Four years later, the death penalty was back in business and has flourished ever since. Did the "political context" reverse itself in only four years? Or did Marshall, a man of integrity, whose belief against the death penalty was sincere and unquestioned by anyone, overreach? I plump for overreaching. Disagree with me, but please bring your facts along, which are always a pleasure to read.

I'm obliged to you for blasting Rosen. I read the opinion he cited, and I couldn't square it with what he wrote. I'm not trained in law, having only a layman's interest in it, so your exegisis was welcome. But I repeat, this dinsingenuousness has been going on for a long time, as those of us on the Right will tell you. It is true, that it is easier to see the light when it's your own pants on fire. Get used to it: with The One in power and 60 seats filled on the Obama Express, there are going to be other occasions when powerful positions open up, and various lefty factions try to club and murder each other using the same unlicensed guns they've used on the Right for years. The One will not appoint a conservative, though he might appoint someone who is not sufficiently Left for many folks.

Sincerely yours,
Gregory Koster
(Not of CUNY)

Darren Lenard Hutchinson said...


You say many things, but you just have not persuaded me. If Bush wanted a certain conservative, he could have picked many white male conservative judges. He did not have to run to the Vermont Supreme Court. Besides, Souter is not a raging liberal. Nor was Bush I a raging rightwinger. Appointing Thomas does not negate my view. Bush I wanted to appoint a black judge, and most of them were very liberal -- and explicit. The "I didn't know he was liberal" excuse would not work with them.

Second, either life experience, Senator, Governor, whatever. I am just quoting what they said. And they all said "life experience" beyond being just a judge. That sounds like a script to me. All of a sudden they are saying this. I do not recall a chorus of Senators saying this in the past. Everything is scripted with Obama.

Also, Ford did not lose because he was a moderate, but because he pardoned Nixon. Reagan also ran a divisive campaign that weakened him even more. Reagan moved to the right to capture the South, and Republicans have catered to rightwing religious conservatism since that time. All I have said is that during the current political moment, this will not work.

Finally, the Court did not dictate social change in Boston. Integration really did not begin until 1964 when CONGRESS passed legislation that would have cut funds for schools that maintained segregation. By the time the courts ordered desegregation in Boston, Brown had been decided nearly two decades -- and federal and state laws banning racial discrimination had been passed. The court enforced the law in Boston; it did not impose social change. Your view of the issue is far too narrow and, accordingly, does not capture the complexity of the issue.

Anonymous said...

Dear Mr. Hutchinson: OK, fair enough I haven't persuaded you. I'm obliged to you for reading and not consigning me to oblivion as many sites would. I humbly offer you a copy of COMMON GROUND by J. Anthony Lukas, on the Boston school busing years. It is heartbreaking to read, showing the failure of Arthur Garrity, the federal judge, a man of great good will and integrity, to accomplish the task the Supremes tossed to him.

Courts ENFORCE the law? Since when? Enforcement's a job for the Executive.

You don't persuade me. The dictates of school busing in Boston, done very much against the will of the majority affected, came from the Court. You write that Congress would have cut funding had Boston maintained segregation. I could be wrong, but my reading of COMMON GROUND persuades me that Bostonians would have said, Cut the funding, you bastards, we'll carry on ourselves. Cite me a USC code section or act of Congress that dictated Boston would bus or else, and we'll put Arthur Garrity in charge of this plan. And what were the results?

Sincerely yours,
Gregory Koster

Darren Lenard Hutchinson said...

Gregory - apparently, you do not know anything about an injunction! Courts enforce their rulings -- which are LAW.

Second- you are referring to WHITE Bostonians resisting the requirements of Equal Protection. Sorry, but that the constitution does not define equality around the views of racists.

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