Replacing Souter

Thursday, May 21st, 2009

Over at Reason, I and several people smarter than me wax on Obama’s choice to replace David Souter on the Supreme Court.

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17 Responses to “Replacing Souter”

  1. #1 |  Matt | 

    Good article for the most part. I liked your thoughts and the vast majority of the others.
    But…Glenn Reynolds is a douche.

  2. #2 |  Ginger Dan | 

    I think it would be great to see a nominee who has experience with “unintended consequences”. Perhaps someone with public defender experience who have witnessed firsthand the destruction of the individual by the state. How about someone from the Institute for Justice? We know those cats understand the Constitution? I think the most far-out and interesting choice would be one of the Military Lawyers who were chosen to represent the detainees in Guantanamo.

  3. #3 |  chance | 

    I think the empathy issue is getting overplayed. If empathy truly isn’t a quality you want in a judge, we’d program a computer to do the judging.

  4. #4 |  chance | 

    Not saying that would always be a bad idea mind you…

  5. #5 |  Aresen | 

    @ Chance

    You already have “Terminator” Scalia on the court.

  6. #6 |  Mario | 

    “I and several people smarter than I (am) wax on Obama‚Äôs choice…”

    Come on, Radley! Ask one of those “smarter people,” next time ;-)

  7. #7 |  Matt D | 

    And Glenn Reynolds had just about the least thoughtful response of all. Go figure.

  8. #8 |  Windy | 

    Mario, Radley’s grammar and usage is correct. The “(am)” is unnecessary.

  9. #9 |  supercat | 

    I think the empathy issue is getting overplayed.

    No, it isn’t, for two reasons.

    -1- A Supreme Court justice has a duty to put the Constitution above all else. While it’s certainly obvious that many justices are derelict in that duty, that does not mean that one should grant legitimacy to such dereliction. While deviating from the Constitution might in some cases allow the Court to reach a more just decision than the Constitution itself would allow, loosening the reins to allow such deviation will have dangerous consequences. Better to have occasional undesirable results than to have a lawless Court.

    -2- When Obama says “empathy”, he means a desire to favor the “little guys”, regardless of what the law actually requires. And not just any “little guys”–his preferred ones. Very dangerous.

  10. #10 |  seeker6079 | 

    Some damned useful, insightful and honest commentary, with the exception of Glenn Reynolds.

    It must be very distracting to have him at the writing meetings, Radley. A good discussion gets going when it gets derailed by somebody having to say, “no, Glenn, NO! Noooo! Take that out of your mouth. Good, good. Oh GoD! who let him have a paperknife? Oh Lord…..”

  11. #11 |  KBCraig | 

    I want a nominee who will loudly and publicly condemn the slavish court adherence to stare decisis. Case law should be a last resort after the plain language of the Constitution, then black letter statutory law as authorized by the constitution, then common law definitions, and only then, if none of those offer clarity, should the court refer to previous rulings.

  12. #12 |  markm | 

    Empathy for small businesses with a thousand pages of government forms to turn in, or just for high government officials that “forgot” to fill out a one-page tax schedule in spite of many reminders? Empathy for home owners who lose the use of their land to regulation? Empathy for future taxpayers? For non-UAW retirees whose pension fund invested in secured Chrysler bonds?

    No, the only empathy I see from the Obama administration is for the overpaid UAW and for highly placed crooks.

  13. #13 |  Boyd Durkin | 

    A good discussion, but…can we put the SCOTUS in the same closet that stores the Constitution? Since I’ve seen nothing but a denigration of the Constitution by those “sworn to unhold” and equal contempt by the SCOTUS to screw citizens and diefy the state, I’m thinking we can end the charade.

    The decline started a long time ago, so I’m not talking about the ConLib soap opera of the last 20 years.

    I guess I consider SCOTUS a lagging indicator of freedom. As such, the revolution won’t start with nominees there.

  14. #14 |  Z | 

    Do you guys realize that with Souter departing, none of the justices currently on the court have ever tried a case? Seriously:

    Stevens- SEC lawyer, law professor
    Kennedy- law professor
    Scalia- corporate lawyer, law professor
    Breyer- law professor
    Ginsburg- appellate lawyer, law professor
    Thomas- EEOC lawyer, Coke can designer
    Roberts- government appellate lawyer
    Alito- assistant US and DOJ attorney, appellate lawyer

    As for law schools, 6 of the above are from Yale/Harvard.

    7 of the 8 are men.
    7 of the 8 are white.

    If Obama really wants to rock my world, he will appoint someone, preferably a woman (women and men are different: that’s just a fact) who at some point worked for legal aid or as a public defender, went to a law school outside of the northeast, and has had at least one interaction with someone who earns less than 35K a year. Leah Ward Sears would hit the spot.

  15. #15 |  Ken | 

    Barnett and Kozinski would be nice, but Janice Rogers Brown would be the best of all possible choices.

  16. #16 |  Mario | 

    Hey, Windy — I put the “am” in for illustrative purposes. The original sentence read as follows: “I and several people smarter than me…”

    The “me” is incorrect. It’s clear to the ear if you add “am” to the sentence, but as you say, it’s unnecessary.

    I wrote that only because I find it funny in the context of the “smarter people” remark. That’s why I encouraged him to double check with those smarter people over at Reason, next time.

    Just to be clear though, it’s just a bit of levity on my part; and if it doesn’t come across like that on the Web, my apologies to Mr. Radley. I’ve followed this blog for well more than a year now. It’s one of my favorites.

  17. #17 |  Windy | 

    It’s one of my favs, too, I have it linked on my toolbar so it takes only one click to get here. I’m sorry I missed that he’d written “me” rather than “I”, in that you are correct. It amazes me the number of people who get that I/me thing wrong so often, and it always in a sentence where there is more than I/me included. I always tell people to take the others out of the sentence and then they’ll know which is correct, “I” or “me”. Examples:
    My father and I went out to dinner. — I went out to dinner
    She told Sally and me to try that diner. — She told me to try that diner.
    It’s easy, so why is it so often misused? I see it in print I hear it on TV in both news and entertainment shows, I find it very annoying, one of my pet peeves, but then my grandmother was a teacher.